Imatges de pàgina

the way for a temperate and rational Democratical Republic.

As the discoveries which had been made in America by European navigators were deemed to confer the exclusive right of occupancy upon their respective sovereigns, those parts of the Continent which had been claimed as the reward of English enterprise, were appropriated as British colonies, either by extensive grants of territory and jurisdiction to favoured individuals, or by encouraging settlers at large by limited territorial grants, reserving the general domain of the province to the crown, and providing for the dercise of the whole jurisdiction, under its authority. Hence two sorts of provincial governments had arisen: first, those denominated royal governments, in which the general domain continued in the crown; and, secondly, proprietary governments, in which both the territory and jurisdiction were granted by the king to one or more of his subjects. In the former case, the chief executive magistrate was appointed by the crown: in the latter, by the proprietaries : in both, the legislative power was vested, wholly or partially, in the people ; subject, in the one case, to the control of the king in council, and in the other, to that of the proprietary. In some few of the colonies, indeed, the power of legislation was uncontrolled, as we have seen, by the parent-state ; so that, previously to the Revolution, the colonists had long been accustomed to elect representatives to compose the more numerous branch of their Legislature, and in some instances the second, or less numerous branch, and even their chief executive magistrate. No hereditary powers had ever existed in the colonial governments, and all political power ex ercised in them was derived either from the people or from the king.


The powers of the crown being abrogated by the successful assertion of our independence, the people remained the only source of legitimate authority; and when the citizens of the several states proceeded to form their respective constitutions, the materials in their possession, as well as their former habits, and modes of thinking and acting on political subjects, were peculiarly favourable to governments representative in all the three departments; and, accordingly, such governments were universally adopted. Under various modifications and forms, produced in a great degree by ancient habits, the same general principles were established in every state. In general, the legislative, executive, and judicial powers were kept distinct, with the manifest intention of rendering them essentially independent of each oth

The Legislature was, for the most part, divided into two branches, and all persons holding offices of trust or profit were excluded from it. The supreme executive magistrate was also rendered elective, and a strong jealousy of his power was everywhere apparent. The superior judges received their appointments from the Legislature or the executive, and in most instances the tenure of their offices was during good behaviour.

These principles formed the common and original basis of the American Republics, and were adhered to in the Federal Constitution, which, while it unites them as one nation, guaranties their separate and residuary sovereignty. The same fundamental principles have also been recognised and adopted in the new states since erected from the territory ceded by individual states for the common benefit, or acquired by negotiation or purchase, and subsequently admitted into the Union. There were, howo ever, several departures from this general outline, which in some instances have been superseded by subsequent amendments, and in others retained in the original Constitution, and imitated in some of those which have been more recently established. In some cases the Legislature consisted of a single body; but this peculiarity was soon very generally abandoned, and, except in Vermont, no longer exists. In some of the states the tenure of judicial office is for a term of years; and in Connecticut, until the adoption of a new Constitution in 1818, the judges were elected annually, and formed one branch of the Legislature ; as is still the case in Rhode Island, whose colonial charter has even been copied in the first of these particulars by some of the younger members of the National Union.* The qualifications requisite to confer the privileges of an elector, and to constitute eligibility to office, are also various ; and the second branch of the Legislature is frequently differently constituted in different states. a greater--on others, a less effect is discernible, to render it an effectual check upon the more numerous or popular branch, either by prolonging the term for which its members are elected, or requiring higher qualifications in them, or their constituents.

In constituting the executive power, there appears equal variety. It is now, however, uniformly vested, either wholly or restrictively, in a single person. In some states he is eligible for longer, and in others for shorter periods. In some he is invested with a qualified negative upon the laws, which in others is withheld from him. In some few of the states he is intrusted with power to make appointments to office, either absolutely, or subject to the approval of a coun

* Since this work was sent to the press, a new Constitution has been established in that state, by which the usual division is de of the Legislature into two branches.


On some,


cil, or of the second branch of the Legislature ; while in most states that power is exercised exclusively by both branches of the latter. In some instances the executive magistrate is enabled to pursue the dictates of his own unbiased judgment; and in others he is divested of all actual responsibility-either directly, by being placed under the control of a council, or indirectly, from his being chosen by the legislative body, or its more numerous branch. In general, however, the ancient institutions, which the provinces had derived by charter from the crown of England, were, the change of government, so far preserved as was compatible with the abolition of royal authority and colonial dependance.

Among the most valuable of the institutions retained by the states on the change of government, was that system of jurisprudence by which the absolute and inalienable rights of the people were recognised and secured, their relative rights or civil privileges regulated and maintained, and offences against public justice investigated and punished. It was held as a fundamental maxim, that the colonists, as English subjects, were entitled to the benefits and protection of the common law, and of such parts of the statute law of Great Britain as were applicable to their situation. This system of jurisprudence prevailed in all the colonies. It was brought from England by the original settlers, in those planted under her authority, and had been gradually and silently extended to those provinces which had been conquered by her arms; so that before the Revolution it had been universally established as their municipal code, so far as it was adapted to their circumstances; and it was claimed by the Congress of 1774 as a branch of those “indubitable rights and liberties to which the respective colonies were entitled.”

The most essential of these privileges were those natural rights, which are, indeed, common to all mankind, but which, in virtue of Magna Charta, and other fundamental laws of the mother country, were deemed to be the peculiar birthright and inheritance of British subjects. They comprise, according to Sir William Blackstone, that residuum of natural liberty which is not required by the laws of society to be sacrificed to public convenience, as well as those civil privileges which society engages to provide in lieu of those natural liberties so given up by individuals. In the first class, the learned commentator comprehends, 1st. The right of personal security; 2d. The right of personal liberty ; and, 3d. The right of private property. The other privileges of the same character, but subordinate in degree, to which, as English subjects, the colonists were entitled, were, 1st. The Constitution, powers, and privileges of their provincial legislatures; 2d. The limitation of the king's prerogative by 'certain and notorious bounds; 3d. The right of applying to the courts of justice for the redress of injuries; the most valuable incidents to which privilege, were the right of trial by jury, and the benefit of the writ of Habeas Corpus; 4th. The right of petitioning the king, or either branch of the imperial or provincial Legislature, for the redress of grievances; and, 5th. That of keeping arms for their defence ; which was, indeed, a public allowance, under certain restrictions, of the natural right of resistance and self-preservation.

In these several articles are contained what are emphatically termed “the liberties of Englishmen.” To their enjoyment, the colonists were entitled by birthright as British subjects; and, to vindicate that right, they first took up arms against the parent-state, and ultimately withdrew from her dominion. Upon that separation, and the subsequent establishment of

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