Various Kinds of Colonial Government (1747) BY DOCTOR WILLIAM DOUGLASS Douglass was a physician and savant in Boston; he wrote much, assembling in confused form much of his learning in his Summary. His strong prejudices are manifest, but he is a valuable witness. — Bibliography : Tyler, American Literature, II, 151-157; H. L. Osgood, in American Historical Review, II, 644, III, 31, 244. General Remarks concerning the British Colonies in America. THE Subject-Matters of this Section according to my first Plan are prolix, being various and copious, and perhaps would be the most curious and informing Piece of the Performance to some Readers ; but as many of our Readers in these Colonies seem impatient for our entring upon the Affairs of their several Settlements, we shall contract the present Section, and shall defer several Articles to the Appendix ; such as, the Rise, Progress, and present State of the pernicious Paper-Currencies ; some Account of the prevailing or Endemial Diseases in our North-America Colonies, and many other loose Particulars, the various Sectaries in Religion, which have any Footing in our American Colonies shall be enumerated in the Section of Rhode Island, where we find all Degrees of Sectaries (some perhaps not known in Europe) from no Religion to that of the most wild Enthusiasts. Religious Affairs, so far as they may in some Manner appertain to the Constitution of the Colonies, do make an Article in this Section. . . . Concerning the general Nature and Constitution of British North-American Colonies. ALL our American Settlements are properly Colonies, not Provinces as they are generally called : Province respects a conquered People (the Spaniards in Mexico and Peru may perhaps in Propriety bear this Appellation) under a Jurisdiction imposed upon them by the Conqueror; Colonies are formed of national People v. g. British in the British Colonies, transported to form a Settlement in a foreign or remote Country. The first Settlers of our Colonies, were formed from various Sorts of People, 1. Laudably ambitious Adventurers. 2. The Malecontents, the Unfortunate, the Necessitous from Home. 3. Transported Criminals. The present Proportion of these Ingredients in the several Plantations varies much, for Reasons which shall be mentioned in the particular Sections of Colonies, and does depend much upon the Condition of the first Settlers : Some were peopled by Rebel Tories, some by Rebel Whigs (that Principle which at one Time is called Royalty, at another Time is called Rebellion) some by Church of England-Men, some by Congregationalisms or Independents, some by Quakers, some by Papists (Maryland and Monserrat) the most unfit People to incorporate with our Constitution. Colonies have an incidental good Effect, they drain from the Mother-Country the Disaffected and the Vicious (in this same Manner, subsequent Colonies purge the more ancient Colonies) ; Rhode-Island and Providence Plantations, drained from Massachusetts-Bay, the Antinomians, Quakers, and other wild Sectaries. Perhaps in after Times (as it is at Times with the Lord Lieutenants and other high Officers in Ireland) some Malecontents of Figure, capable of being troublesome to the Administration at Home, may be sent in some great Offices to the Plantations. In our Colonies we have four Sorts of People. 1. Masters that is Planters and Merchants. 2. White Servants. 3. Indian Servants. 4. Slaves for Life, mostly Negroes. White Servants are of two Sorts, viz. Poor People from Great-Britain, and Ireland mostly, these are bound or sold, as some express it, for a certain Number of Years, to reimburse the transporting Charges, with some additional Profit ; the others are Criminals judicially transported, and their Time of Exile and Servitude sold by certain Undertakers and their Agents. In our American Settlements, generally the Designations are, Province, where the King appoints a Governor ; Colony, where the Freemen elect their own Governor : This customary Acceptation is not universal ; Virginia is called a Colony, perhaps because formerly a Colony, and the most ancient. We have some Settlements with a Governor only ; others with Governor and Council, such are Newfoundland, Nova-Scotia, Hudsons- Bay, and Georgia, without any House or Negative deputed by the Planters, according to the Essence of a British Constitution : These, may be said, not colonized. There are various Sorts of Royal Grants of Colonies. 1. To one or more personal Proprietors, their Heirs and Assigns ; such are Maryland and Pennsylvania ; both Property and Government. 2. The Property to personal Proprietors ; the Government and Jurisdiction in the Crown ; this is the State of Carolinas and Jersies. 3. Property and Government in the Crown, viz. Virginia, New York, and New- Hampshire commonly called Piscataqua. 4. Property in the People and their Representatives ; the Government in the Crown; as is Massachusetts-Bay. 5. Property and Government in the Governor and Company, called the Freemen of the Colony, such are Connecticut and Rhode-Island. This last seems to be the most effectual Method of the first settling and peopling of a Colony ; Mankind are naturally desirous of Parity and Leveling, without any fixed Superiority, but when a Society is come to Maturity, a more distinct fixed Subordination is found to be requisite. Connecticut, Rhode-Island, and some of the Proprietary Governments, are of Opinion, that they are not obliged to attend to, or follow any Instructions or Orders from their Mother-Country or Court of Great-Britain ; they do not send their Laws home to the Plantation-Offices to be presented to the King in Council for Approbation or Disallowance : They assume the Command of the Militia, which by the British Constitution is a Prerogative of the Crown : Some Time ago, they refused not only a Preventive Custom-House Office, but likewise a Court of Vice-Admiraltys Officers appointed from Home ; but these Points they have given up, especially considering that the Royal Charter grants them only the Privilege of trying Causes, Intra corpus Comitatus, but not a-float or Super altum mare. W [illiam] D [ouglass] , A Summary, Historical and Political, of the first Planting . . . of the British Settlements in North-America (Boston, 1747) I, 201-208 passim. 51. A French Publicists View of the British Constitution (1748) BY MONSIEUR CHARLES DE SECONDAT DE MONTESQUIEU ANONYMOUS TRANSLATION, (1777) Montesquieu was a French philosopher and publicist, who had lived in England and who greatly admired the English government as he understood it. His book was much read in the colonies; and he had more influence than any other writer in the development in America of balanced governments of three departments. — Bibliography : Channing and Hart, Guide, § 134. IN every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations and the executive in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other, simply, the executive power of the state. The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another. When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty ; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul ; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. . . . The judiciary power ought not to be given to a standing senate ; it should be exercised by persons taken from the body of the people, at certain times of the year, and consistently with a form and manner prescribed by law, in order to erect a tribunal that should last only so long as necessity requires. By this method, the judicial power, so terrible to mankind, not being annexed to any particular state or profession, becomes, as it were, invisible. People have not then the judges continually present to their view ; they fear the office, but not the magistrate. In accusations of a deep and criminal nature, it is proper the person accused should have the privilege of choosing, in some measure, his judges, in concurrence with the law ; or, at least, he should have a right to except against so great a number, that the remaining part may be deemed his own choice. The other two powers may be given rather to magistrates or permanent bodies, because they are not exercised on any private subject; one being no more than the general will of the state, and the other the execution of that general will. But, though the tribunals ought not to be fixt, the judgements ought ; and to such a degree, as to be ever conformable to the letter of the law. Were they to be the private opinion of the judge, people would then live in society without exactly knowing the nature of their obligations. The judges ought likewise to be of the same rank as the accused, or, in other words, his peers ; to the end, that he may not imagine he is fallen into the hands of persons inclined to treat him with rigour. . . . As, in a country of liberty, every man who is supposed a free agent ought to be his own governor, the legislative power should reside in the whole body of the people. But, since this is impossible in large states, and in small ones is subject to many inconveniences, it is fit the people should transact by their representatives what they cannot transact by themselves. The inhabitants of a particular town are much better acquainted with its wants and interests than with those of other places ; and are better judges of the capacity of their neighbours than of that of the rest of their countrymen. The members, therefore, of the legislature should not be chosen from the general body of the nation ; but it is proper, that, in every considerable place, a representative should be elected by the inhabitants. The great advantage of representatives is, their capacity of discussing public affairs. For this, the people collectively are extremely unfit, which is one of the chief inconveniences of a democracy. . . . Neither ought the representative body to be chosen for the executive part of government, for which it is not so fit ; but for the enacting of laws, or to see whether the laws in being are duly executed ; a thing suited to their abilities, and which none indeed but themselves can properly perform. In such a state, there are always persons distinguished by their birth, riches, or honours : but, were they to be confounded with the common people, and to have only the weight of a single vote, like the rest, the common liberty would be their slavery, and they would have no interest in supporting it, as most of the popular resolutions would be against them. The share they have, therefore, in the legislature ought to be proportioned to their other advantages in the state ; which happens only when they form a body that has a right to check the licentiousness of the people, as the people have a right to oppose any encroachment of theirs. The legislative power is, therefore, committed to the body of the nobles, and to that which represents the people ; each having their assemblies and deliberations apart, each their separate views and interests. . . . But, as an hereditary power might be tempted to pursue its own particular interests, and forget those of the people, it is proper, that, where a singular advantage may be gained by corrupting the nobility, as in the laws relating to the supplies, they should have no other share in the legislation than the power of rejecting, and not that of resolving. . . . The executive power ought to be in the hands of a monarch, because this branch of government, having need of dispatch, is better administered by one than by many : on the other hand, whatever depends on the legislative power, is oftentimes better regulated by many than by a single person. But, if there were no monarch, and the executive power should be committed to a certain number of persons, selected from the legislative body, there would be an end of liberty, by reason the two powers would be united ; as the same persons would sometimes possess, and would be always able to possess, a share in both. Were the legislative body to be a considerable time without meeting, this would likewise put an end to liberty. For, of two things, one would naturally follow : either that there would be no longer any legislative resolutions, and then the state would fall into anarchy ; or that these resolutions would be taken by the executive power, which would render it absolute. It would be need less for the legislative body to continue always assembled. This would be troublesome to the representative, and moreover would cut out too much work for the executive power, so as to take off its attention to its office, and oblige it to think only of defending its own prerogatives and the right it has to execute. . . . The legislative body should not meet of itself. For a body is supposed to have no will but when it is met : and besides, were it not to meet unanimously, it would be impossible to determine which was really the legislative body, the part assembled, or the other. And if it had a right to prorogue itself, it might happen never to be prorogued ; which would be extremely dangerous, in case it should ever attempt to encroach on the executive power. Besides, there are reasons (some more proper than others) for assembling the legislative body : it is fit, therefore, that the executive power should regulate the time of meeting, as well as the duration, of those assemblies, according to the circumstances and exigences of a state, known to itself. . . . But, if the legislative power, in a free state, has no right to stay the executive, it has a right, and ought to have the means, of examining in what manner its laws have been executed ; an advantage which this government has over that of Crete and Sparta, where the Cosmi and the Ephori gave no account of their administration. But, whatever may be the issue of that examination, the legislative body ought not to have a power of arraigning the person, nor, of course, the conduct, of him who is entrusted with the executive power. His person should be sacred, because, as it is necessary, for the good of the state, to prevent the legislative body from rendering themselves arbitrary, the moment he is accused or tried there is an end of liberty. In this case, the state would be no longer a monarchy, but a kind of republic, though not a free government. But, as the person, intrusted with the executive power, cannot abuse it without bad counsellors, and such as hate the laws as ministers, though the laws protect them, as subjects these men may be examined and punished. . . . It might also happen, that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of crimes which the ordinary magistrates either could not, or would not, punish. But, in general, the legislative power cannot try causes ; and much less can it try this particular case, where it represents the party aggrieved, which is the people. , It can only, therefore, impeach. But before what court shall it bring its impeachment? Must it go and demean itself before the ordinary tribunals, which are its inferiors, and being composed moreover of men who are chosen from the people as well as itself, will naturally be swayed by the authority of so powerful an accuser? No : in order to preserve the dignity of the people and the security of the subject, the legislative part which represents the people must bring in its charge before the legislative part which represents the nobility, who have neither the same interests nor the same passions. . . . Here, then, is the fundamental constitution of the government we are treating of. The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative. These three powers should naturally form a state of repose or inaction : but, as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert. . . . To prevent the executive power from being able to oppress, it is requisite that the armies with which it is intrusted should consist of the people, and have the same spirit as the people, as was the case at Rome till the time of Marius. To obtain this end, there are only two ways ; either that the persons employed in the army should have sufficient property to answer for their conduct to their fellow-subjects, and be enlisted only for a year, as was customary at Rome ; or, if there should be a standing-army composed chiefly of the most despicable part of the nation, the legislative power should have a right to disband them as soon as it pleased ; the soldiers should live in common with the rest of the people ; and no separate camp, barracks, or fortress, should be suffered. When once an army is established, it ought not to depend immediately on the legislative, but on the executive, power ; and this from the very nature of the thing, its business consisting more in action than deliberation. . . . In perusing the admirable treatise of Tacitus on the manners of the Germans, we find it is from that nation the English have borrowed the idea of their political government. This beautiful system was invented first in the woods. As all human things have an end, the state we are speaking of will lose its liberty, will perish. Have not Rome, Sparta, and Carthage, perished ? It will perish when the legislative power shall be more corrupt than the executive. It is not my business to examine whether the English actually enjoy this liberty, or not. Sufficient it is for my purpose to observe, that it is established by their laws ; and I inquire no farther. M. [Charles de Secondat] de Montesquieu, The Spirit of Laws (Complete Works, I, Dublin, 1777), Book XI, ch. vi., 198-212 passim. Rule Segment - Span - 20px.svg Rule Segment - Flare Centre - 14px.svg Rule Segment - Span - 20px.svg 52. The Law in all our Provinces (1757) BY EDMUND BURKE Bibliography as in No. 44 above. IT has been an old complaint, that it is not easy to bring American governors to justice for mismanagements in their province, or to make them refund to the injured people the wealth raised by their extortions. Against such governors at present there are three kinds of remedy ; the privy council, the king s bench, and the parliament. The council on just cause of complaint may remove the governor ; the power of the council seems to extend no further. The king s bench may punish the governors for their offences committed in America, as if done in England. The power of parliament is unlimited in the ways of enquiry into the crime, or of punishing it. The first of these remedies can never be sufficient to terrify a governor grown rich by iniquity, and willing to retire quietly, though dishonourably, to enjoy the fruits of it. The kings bench, or any other merely law court, seems equally insufficient for this purpose, because offences in government, though very grievous, can hardly ever be so accurately defined as to be a proper object of any court of justice, bound up by forms and the rigid letter of the law. The parliament is equal to every thing ; but whether party, and other bars to a quick and effectual proceeding may not here leave the provinces as much unredressed as in the other courts, I shall not take upon me to determine. The law in all our provinces, besides those acts which from time to time they have made for themselves, is the common law of England, the old statute law, and a great part of the new, which in looking over their laws I find many of our settlements have adopted, with very little choice or discretion. And indeed the laws of England, if in the long period of their duration they have had many improvements, so they have grown more tedious, perplexed, and intricate, by the heaping up many abuses in one age, and the attempts to remove them in another. These infant settlements surely demanded a more simple, clear, and determinate legislation, though it were of somewhat an homelier kind ; laws suited to the time, to their country, and the nature of their new way of life. Many things still subsist in the law of England, which are built upon causes and reasons that have long ago ceased ; many things are in those laws suitable to England only. But the whole weight of this ill-agreeing mass, which neither we nor our fathers were well able to bear, is laid upon the shoulders of these colonies, by which a spirit of contention is raised, and arms offensive and defensive are supplied to keep up and exercise this spirit, by the intricacy and unsuitableness of the laws to their object. And thus in many of our settlements the lawyers have gathered to themselves the greatest part of the wealth of the country ; men of less use in such establishments than in more settled countries, where the number of people naturally sets many apart from the occupations of husbandry, arts, or commerce. Certainly our American brethren might well have carried with them the privileges which make the glory and happiness of Englishmen, without taking them encumbered with all that load of matter, perhaps so useless at home, without doubt so extremely prejudicial in the colonies. [Edmund Burke], An Account of the European Settlements in America (London, 1760), II, 302-304. Rule Segment - Span - 20px.svg Rule Segment - Flare Centre - 14px.svg Rule Segment - Span - 20px.svg 53. The Effect of Royal Instructions (1764) BY LATE GOVERNOR THOMAS POWNALL Pownall was the most considerate and liberal of the Massachusetts royal governors (1757-1760), and was later governor of South Carolina. He thought and wrote much on colonial administration. — Bibliography: Palfrey, New England, V, 153-176; Channing and Hart, Guide, § 134. — For earlier principles of English control, see Contemporaries, I, ch. vii. UPON such review it will appear, under this first general head, in various instances, that the two great points which the Colonists labour to establish, is the exercise of their several rights and privileges, as founded in the rights of an Englishman ; and secondly, as what they suppose to be a necessary measure in a subordinate government, the keeping in their own hands the command of the revenue, and the pay of the officers of government, as a security of their conduct towards them. Under the first head come all the disputes about the King s instructions, and the governors power, as founded on them. The Kings commission to his governor, which grants the power of government, and directs the calling of a legislature, and the establishing courts, at the same time that it fixes the governors power, according to the several powers and directions granted and appointed by the commission and instructions, adds, and by such further powers, instructions, and authorities, as shall, at any time hereafter, be granted or appointed you, under our signet or sign manual, or by our order in our privy council. It should here seem, that the same power which framed the commission, with this clause in it, could also issue its future orders and instructions in consequence thereof : but the people of the colonies say, that the inhabitants of the colonies are entitled to all the privileges of Englishmen ; that they have a right to participate in the legislative power ; and that no commands of the crown, by orders in council, instructions, or letters from Secretaries of State, are binding upon them, further than they please to acquiesce under such, and conform their own actions thereto ; that they hold this right of legislature, not derived from the grace and will of the crown, and depending on the commission which continues at the will of the crown ; that this right is inherent and essential to the community, as a community of Englishmen : and that therefore they must have all the rights, privileges, and full and free exercise of their own will and liberty in making laws, which are necessary to that act of legislation, — uncontrouled by any power of the crown, or of the governor, preventing or suspending that act ; and, that the clause in the commission, directing the governor to call together a legislature by his writs, is declarative and not creative ; and therefore he is directed to act conformably to a right actually already existing in the people, &c. When I speak of full uncontrouled independent powers of debate and result, so far as relates to the framing bills and passing them into laws, uncontrouled by any power of the crown or of the governor, as an essential property of a free legislature ; I find some persons in the colonies imagine, that I represent the colonies as claiming a power of legislature independent of the Kings or governors negative. — These gentlemen knowing that it is not my intention to do injustice to the colonies, wish me so to explain this matter, that it may not bear even the interpretation of such a charge — I do therefore here desire, that the reader will give his attention to distinguish a full, free, uncontrouled, independent power, in the act of legislation,— from a full, free, uncontrouled, independent power, of carrying the results of that legislation into effect, independent either of the Governors or Kings negative. The first right is that which I represent the Colonists claiming, as a right essential to the very existence of the legislature : The second is what is also essential to the nature of a subordinate legislature, and what the Colonists never call in question. That therefore the point here meant to be stated as in debate, is, Whether a subordinate legislature can be instructed, restricted, and controuled, in the very act of legislation? whether the Kings instructions or letters from secretaries of state, and such like significations of his Majestys will and pleasure, is a due and constitutional application of the governors, or of the royal negative? — The Colonists constantly deny it, and — ministry, otherwise such instructions would not be given, constantly maintain it. After experience of the confusion and obstruction which this dubitable point hath occasioned to business, it is time surely that it were some way or other determined. I do not here enter into the discussion of this point ; I only endeavour fairly to state it, as I think it is a matter which ought to be settled some way or other, and ought no longer to remain in contention, that the several matters which stand in instruction, and in dispute in consequence of it, may be finally placed upon their right grounds ; in the doing of which it must come under consideration, how far the crown has or has not a right to direct or restrict the legislature of the colonies, — or if the crown has not this power, what department of government has, and how it ought to be exercised ; or whether in fact or deed, the people of the colonies, having every right to the full powers of government, and to a whole legislative power, are under this claim entitled in the powers of legislature and the administration of government, to use and exercise in conformity to the laws of Great Britain, the same, full, free, independent, unrestrained power and legislative will in their several corporations, and under the Kings commission and their respective charters, as the government and legislature of Great Britain holds by its constitution, and under the great charter. Thomas Pownall, The Administration of the Colonies (London, 1765), 39-43.
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