V FURTHER COLONIAL PRECEDENTS To balance a large state or society, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in this work: Experience must guide their labour: Time must bring it to perfection: And the feeling of inconveniences must correct the mistakes, which they inevitably fall into, in their first trials and experiments. (David Hume, Of the Rise and Progress of the Arts and Sciences, Essays and Treatises, 1742, edition of 1825, Vol. I, p. 117.) To any one who had inhabited a colony governed under a charter the effect of which on the validity of a colonial law was certainly liable to be considered by the Privy Council, there was nothing startling in empowering the judiciary to pronounce in given cases upon the constitutionality of Acts passed by assemblies whose powers were limited by the Constitution, just as the authority of the colonial legislatures was limited by charter or by Act of Parliament. (Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 1885, 8th edition, 1915, p. 160.) The free fruition of such liberties Immunities and priveledges as humanitie, Civilitie, and Christianitie call for as due to every man in his place and proportion without impeachment and Infringement hath ever bene and ever will be the tranquillitie and Stabilitie of Churches and Commonwealths. And the deniall or deprivall thereof, the disturbance if not the ruine of both. We hould it therefore our dutie and safetie whilst we are about the further establishing of this Government to collect and expresse all such freedomes as for present we foresee may concerne us, and our posteritie after us, And to ratify them with our sollemne consent. Wee doe therefore this day religiously and unanimously decree and confirme these following Rites, liberties and priveledges concerneing our Churches, and Civil State to be respectively impartiallie and inviolably enjoyed and observed throughout our Jurisdiction for ever. 1. No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged under colour of law, or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country waranting the same, established by a generall Court and sufficiently published, or in case of the defect of a law in any parteculer case by the word of God. And in Capitall cases, or in cases concerning dismembring or banishment according to that word to be judged by the Generall 2. Every person within this Jurisdiction, whether Inhabitant or forreiner shall enjoy the same justice and law, that is generall for the plantation, which we constitute and execute one towards another without partialitie or delay. (The Liberties of the Massachusets Colonie in New England, 1641, Old South Leaflets, Vol. VII, No. 164, p. 261.) In appealing to the common law, as the standard of exposition, in all doubts as to the meaning of written instruments; there is safety, certainty, and authority. The institutions of the colonies were based upon it; it was their system of jurisprudence, with only local exceptions, to suit the condition of the colonists, who claimed it as their birth-right and inheritance, 9 Cr. 333, in its largest sense, as including the whole system of English jurisprudence, I Gall. 493; the inexhaustible fountain from which we draw our laws, 9 S. & R. 330, 39, 58. So it continued after the colonies became states, in most of which the common law was adopted by acts of assembly, which gave it the force of a statute, from the time of such adoption, and as it was then; so that in the language of this Court-" At the adoption of the constitution, there were no states in this Union, the basis of whose jurisprudence was not essentially, that of the common law in its widest meaning; and probably no states were contemplated, in which it would not exist." 3 Pet. 446, 8. It is also the basis on which the federal system of jurisprudence was erected by the constitution, the judiciary and process acts, which refer to cases in law and in equity," "suits at common law," "the common law, the principles and usages of law" as they had at the time been defined and settled in England; 5 Cr. 222; 3 Wh. 221; 4 Wh. 115, 16; 7 Wh. 45; 10 Wh. 29, 32, 56, 8; 1 Pet. 613; and were adopted as then understood by the old states. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, PP. 3-4.) It is in the colonial charter that we find the germ of American constitutional law. Each of these, whether of the proprietary, provincial, or republican type, was the fundamental law of the jurisdiction, according to which its government was to be organized and administered. Except that it was not self-imposed, and that it was subject to revocation without the consent of those for whom it was made, it answered very nearly to our modern conception of what a Constitution should be. It was a brief document, laying down a general scheme of political organization, granting large powers of legislation and administration, and imposing a few, and but a few, fundamental restrictions. (Simeon E. Baldwin, Constitutional Law, Two Centuries' Growth of American Law, 1701-1901, 1902, p. 11.) The supervising power of the crown resided nominally in the King in Council; really in a committee of the Council without the King. Certain members of the Privy Council were thus made a standing tribunal, by the name of the Lords of Trade and Plantations. By their authority any colonial statute could be set aside as unauthorized by the charter, and the judgments of the colonial courts re-examined and reversed. From 1718 down to the treaty of peace with the United States in 1783 they were provided with a special counsel of their own, besides being entitled to call on the Attorney-General and SolicitorGeneral for advice. In one respect this royal prerogative, which was not infrequently exercised, was favorable to the development of American liberty and law. It secured a certain unity of movement in their growth. It produced symmetry of form. It built up a sentiment of common nationality. It promoted the study of legal institutions. It helped to rear an American bar, worthy of the name. (Simeon E. Baldwin, Constitutional Law, Two Centuries' Growth of American Law 1701-1901, 1902, þ. 12.) In order to prepare the way still further for the proposition to be set forth in this article, it is necessary to say that the Federal Constitution is not only not a fiat-constitution projected from the brain of the Fathers, nor a copy of the contemporary constitution of England; it is also not founded upon any previous body of institutions which existed merely in the form of customs. As it is itself primarily a body of written law, so it is based upon successive strata of written constitutional law. (William C. Morey, The Genesis of a Written Constitution, Annals of American Academy of Political and Social Science, 1890–91, Vol. I, p. 533.) The law of corporations was the law of their being for the four original New England colonies. Of whatever else they might be ignorant, every man, woman, and child must know something of that. It governed all the relations of life. This was true, whether the government to which they were subject was set up under a charter from the crown or those who held a royal patent, or as in New Haven - was a theocratic republic, owing its authority to the consent of the inhabitants. The one rested on the law of private corporations de jure: the other on that of public corporations de facto. (Simeon E. Baldwin, Constitutional Law, Two Centuries' Growth of American Law 1701–1901, 1902, þ. 261.) The proceedings of a legal character in which the colonies had always been most interested were those which took place in England concerning their own charters. . All the earlier colonial charters were such as were appropriate for the regulation of a trading adventure, or land speculation. Those to whom they were granted occupied the relation of shareholders, and elected their boards of direction and government to sit in England. Long before 1701, these boards in most of the colonies had been replaced by local legislatures, meeting on American soil, and the authority of foreign proprietaries was soon to be withdrawn in all. It is not surprising that English and American lawyers should have been inclined to look at the powers of the colonial assemblies and courts in very different ways. The doings of the original companies, under which the British plantations here were made, were, of course, as they took place in England, fully subject to control by the English courts. The system of judicial appeals to the King in Council was worked out with more and more precision as the eighteenth century advanced. Some of the judgments rendered by the King in Council denied validity to colonial statutes which were of the first importance. Such was that in the case of Winthrop v. Lechmere, rendered in 1727, by which the rules of inheritance which had been followed in Connecticut for nearly a hundred years were set aside as contrary to the laws of England respecting primogeniture. Certain political ideas were thus firmly embedded in the American mind. One was that every statute was subject to be set aside if its enactment transcended the powers conceded in the charter to the colonial legislature. Another was that there was a supreme law the common law of England, modified in rare instances by Act of Parliament which was one and the same for every colony, and that if any of their judicial tribunals failed to respect it, the judgments could be reversed by an imperial court of appeal. The jurisdiction of the King in Council, maintained hardly more for the protection of the_royal prerogative than to repress the development of any distinctively colonial and un-English jurisprudence, thus served directly to prepare the way for the American theory of constitutional law. It supplied some of the necessary conditions by familiarizing our people with the elementary conceptions, the institutional prerequisites, out of which it must grow. (Simeon E. Baldwin, Constitutional Law, Two Centuries' Growth of American Law, 1701-1901, 1902, pp. 17-20.) As the colony was created by a royal charter that called into being a subordinate lawmaking body, that body could neither violate the terms nor transcend the powers of the instrument to which it owed its existence. In colonial times "questions sometimes arose ... whether the statutes made by these assemblies were in excess of the powers conferred by the charter; and, if the statutes were found in excess, they were held invalid by the courts, that is to say, in the first instance by the colonial courts, or, if the matter was carried to England, by the Privy Council." (Bryce, The American Commonwealth, i, 243.) After the severance from the mother country, that power to annul a statute, originally vested in the Privy Council, was simply assumed by the supreme courts of the emancipated states. (Hannis Taylor, The Origin and Growth of the American Constitution, 1911, pp. 103-4.) CHAPTER V FURTHER COLONIAL PRECEDENTS AN examination of the various charters of the plantations which became, in the course of time, the thirteen United States of America, discloses that, with the single exception of Pennsylvania — which, in fact, however, was not an exception they contained the express declaration that the colonists and their children inhabiting them were to be deemed natural born British subjects, and that, as such, they should enjoy all the privileges and immunities thereof. We should expect this to be so, even although it were not expressly stated, as the doctrine of indelible allegiance was then, and for many years thereafter, the cardinal principle of English law, shortly stated in the phrase with which we of the present day are familiar, “Once an Englishman, always an Englishman;" from which it would seem to follow that such an one, owing the duties of an Englishman, would likewise possess all his rights and privileges. It was, however, foreseen that the new and unknown conditions of the new and unknown world to which the colonists were transplanted and in which they took root, would require laws fitted to the new environment; but, being Englishmen, subordinated to the duties and possessing the rights thereof, it was provided, as an examination of the charter discloses, that such rules and regulations as they might frame should, negatively expressed since it was impossible to state positively their content, not be contrary or repugnant to or inconsistent with the laws of England. We should expect that the settlers would assume the rights of Englishmen without giving the subject much thought, that they would think less of their duties and be inclined to test their legality and to question their applicability, even if they should be found to be grounded in the common or statute law of the old country. Especially we should expect the colonists to appeal to the common and statutory law of England guaranteeing the privileges of Englishmen if the mother country should attempt to deprive them of the rights and privileges of Englishmen guaranteed to them by the common law and by statutes passed before the settlement of the colonies. These they could properly claim to carry with them, and they could not unreasonably claim the benefits of statutes passed after the settlement of the colonies giving Englishmen at home greater rights than they possessed at the time of the exodus of the settlers. In expressing an opinion on this matter, it is important to bear in mind Rights of Conquest v. the situation of the New World when the colonies were planted, for if the Discovery Rights of territories parcelled out to companies and forming the colonies of the new world should be considered as conquered or as ceded territories, the laws there obtaining at the time of such cession or conquest, unless changed by the new sovereign, would obtain and continue in force unless inconsistent with the political, religious and moral ideals of the new master. Whereas, if these territories were to be regarded as vacant lands, subject to discovery and оссираtion by Englishmen, there would be no laws by which settlers could be governed other than those which they carried with them as Englishmen. Under the first theory, the common law would not follow the settler but would have to be extended to the territories by express act; under the second, the common law accompanied the settler and did not need to be extended to the territories. Sir William Blackstone, whose Commentaries appeared on the eve of the Revolution and whose opinions had great weight with the colonists, was inclined to the opinion that the territories of the New World were properly to be regarded as acquired by conquest or treaty, saying expressly that “Our American plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice I shall not at present enquire), or by treaties. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions." 1 Interpretation If the facts be as alleged by the illustrious commentator, his conclusions Blackstone's follow as a matter of course, but it does not appear that any of the territory claimed by Great Britain, and out of which the American plantations were formed, was conquered territory. New York, conquered from the Dutch, it may be said, was ceded by treaty, but the conquest and the treaty were regarded merely as removing the obstacles to and as confirming the English claim based upon discovery. It is believed, therefore, that Blackstone's statement lacks the premises without which it can not be supported, and the theory which obtained in colonial times, and the theory in accord with the facts, was clearly and unequivocally stated by Chief Justice Marshall in his masterly opinion in Johnson v. M'Intosh (8 Wheaton, 543), decided in 1823, in which that eminent jurist, after a survey of the discovery and settlement of the New World, held that the title of European nations was acquired by discovery, recognizing in the native Indians a right to possession but not to ownership of the land, which passed to the discoverer upon discovery and subject to appropriation by the discoverer. 1 Sir William Blackstone, Commentaries on the Laws of England, 1765, Vol 1, p. 105. |