in all other Countries, England only excepted, Jus & Equum are held the same, and never divided; so it is there: A Power of Chancery being vested in the Judges of the Courts of Common Law as to some particular Cases, and they make equitable Constructions in Others. I must add, that the Fees of Officers of all sorts are setled by Acts of Assembly at moderate Prices, for the Ease of the Subject.

It were easy to mention other Articles, but that I persuade my self it is needless. The Charter Governments are celebrated for their excellent Laws and mild Administration; for the Security of Liberty and Property; for the Encouragement of Vertue, and Suppression of Vice; for the promoting Letters, by erecting Free-Schools and Colleges; and in one Word, for every Thing that can make a People happy and prosperous. To these Arts it is owing, that New-England, though she has attain'd but little more than the Age of a Man, with all the Disadvantages under which she labours in respect to her Trade and Climate, and almost a perpetual Indian War, has hitherto flourish'd far above any other of the Plantations.

THIS being the Case of the Charter Governments, let us turn the Tables, and see how it far'd with them when in an evil Reign they lost their Charters. Then the Governour of New-England with Four or Five Strangers of his Council, Men of desperate Fortunes, and bad if any Principles, made what Laws, and levy'd what Taxes they pleas'd on the People. They, without an Assembly, rais'd a Penny in the Pound on all the Estates in the Country, and another Penny on all imported Goods, besides Twenty Pence per Head as Poll Money, and an immoderate Excise on Wine, Rum, and other Liquors. Several worthy Persons, having in an humble Address represented this Proceeding as a Grievance, were committed to the common Jail for a High Misdemanour; deny'd the Benefit of the Habeas Corpus Act; try'd out of their own County; fin'd exorbitantly, and oblig'd to pay 160l. for Fees, when the Prosecution would hardly have cost them so many Shillings in Great Britain. And to compleat the Oppression, when they upon their Tryal claim'd the Privileges of Englishmen, they were scoffingly told, Those Things would not follow them to the Ends of the Earth. Unnatural Insult! must the brave Adventurer, who with the Hazard of his Life and Fortune, seeks out new Climates to inrich his Mother Country, be deny'd those common Rights, which his Countrymen enjoy at Home in Ease and Indolence? Is he to be made miserable, and a Slave by his own Acquisitions? Is the Labourer alone unworthy of his Hire, and

shall they only reap, who have neither sow'd nor planted? Monstrous Absurdity! Horrid inverted Order!

THESE Proceedings, however Arbitrary and Oppressive, were but the Prelude The Catastrophe was, if possible, yet more dismal. Having invaded their Liberties, by an easy Transition the next Attack was directly on their Properties. Their Title to their Lands was absolutely deny'd by the Governour and his Creatures upon two Pretences: One, that their Conveyances were not according to the Law of England; the Other, that if they might be thought to have had something like a Title formerly, yet it now ceas'd by the Revocation of their Charters. So that they who had fairly purchas'd their Lands, and held them in quiet Possession for above Fifty Years, were now oblig'd to accept new Deeds from the Governour, and pay for them a third Part of their Value, in order to ascertain their Titles, or otherwise they would be seiz'd for the Crown. . . A 5th. Objection, that the Charter

Colonies will grow great and formidable, answer'd.

THERE is one Thing more I have heard often urg'd against the Charter Colonies, and indeed 'tis what one meets with from People of all Conditions and Qualities, tho' with due respect to their better Judgments, I can see neither Reason nor Colour for it. "'Tis said, that their encreasing Numbers and Wealth join'd to their great Distance from Britain will give them an Opportunity in the Course of some Years to throw off their Dependance on the Nation, and declare themselves a free State, if not curb'd in Time by being made entirely subject to the Crown. Whereas in Truth there's no Body tho' but little acquainted with these or any of the Northern Plantations, who does not know and confess, that their Poverty and the declining State of their Trade is so great at present, that there's far more Danger of their sinking, without some extraordinary Support from the Crown, than of their ever revolting from it. So that I may say without being ludicrous, that it would not be more absurd to place two of His Majesty's Beef-Eaters to watch an Infant in the Cradle that it don't rise and cut its Father's Throat, than to guard these weak Infant Colonies to prevent their shaking off the British Yoke. Besides, they are so distinct from one another in their Forms of Government, in their Religious Rites, in their Emulation of Trade, and consequently in their Affections, that they can never be suppos'd to unite in so dangerous an Enterprize. It is for this Reason I have often wondered to hear some Great Men profess their Belief of the Feasibleness of it, and the Probability of it's some Time or other

actually coming to pass, who yet with the same Breath advise that all the Governments on the Continent be form'd into one, by being brought under one Vice-Roy, and into one Assembly. For surely if we in earnest believ'd that there was or would be hereafter a Disposition in the Provinces to Rebel and declare themselves Independent, it would be good Policy to keep them disunited; because if it were possible they could contrive so wild and rash an Undertaking, yet they would not be hardy enough to put it in Execution, unless they could first strengthen themselves by a Confederacy of all the Parts...

THE Sum of my Argument is, That the Benefit which Great-Britain receives from the Plantations, arises from their Commerce: That Oppression is the most opposite Thing in the World to Commerce, and the most destructive Enemy it can have: That Governours have in all Times, and in all Countries, bin too much inclin'd to oppress: And consequently, it cannot be the Interest of the Nation to increase their Power, and lessen the Liberties of the People. I am so sanguine in this Opinion, that I really think it would be for the Service of the Crown and Nation to incorporate those Governments which have no Charters, rather than Disfranchize those that have.

THE last Thing I propos'd to consider was, how far it may be consistent with Justice, to deprive the Colonies of their Charters, without giving them a fair Tryal or any previous Notice. .

The 4th Proposition, That it

seems inconsist

ent with Justice

to Disfranchize the Charter Col

onies by an Act of Parliament.

. . . It seems therefore a Severity without a Precedent, that a People who have the Misfortune of being a Thousand Leagues distant from their Sovereign, a Misfortune great enough in it self, should UNSUMMON'D, UNHEARD, IN ONE DAY be depriv'd of all their valuable Privileges, which they and their Fathers have enjoy'd for near a Hundred Years. It's true, the Legislative Power is absolute and unaccountable, and King, Lords and Commons may do what they please; but the Question here is not about Power, but Right: And shall not the Supream Judicature of all the Nation do right? One may say, that what the Parliament can't do justly, they can't do at all. In maximis minima est licentia. The higher the Power is, the greater Caution is to be us'd in the Execution of it, because the Sufferer is helpless and without Resort.

Jer [emiah] Dummer, A Defence of the New-England Charters (London, 1721), 35-76 passim.

49.

"A Short Discourse on the Present State of the Colonies" (1728)

BY GOVERNOR SIR WILLIAM KEITH

Keith was the last governor of Pennsylvania commissioned by Penn himself. — Bibliography: Winsor, Narrative and Critical History, V, 240-258; Channing and Hart, Guide, § 133.

WH

7HEN either by Conquest or Encrease of People, Foreign Provinces are possessed, & Colonies planted abroad, it is convenient & often necessary to substitute little Dependant Governments, whose People by being enfranchised, & made Partakers of the Priviledges & Libities belonging to the Original Mother State, are justly bound by its Laws, & become subservient to its Interests as the true End of their Incorporation. Every Act of Dependant Provincial Governments ought therefore to Terminate in the Advantage of the Mother State, unto whom it ows its being, & Protection in all its valuable Priviledges, Hence it follows that all Advantageous Projects or Commercial Gains in any Colony, which are truly prejudicial to & inconsistent with the Interests of the Mother State, must be understood to be illegal, & the Practice of them unwarrantable, because they Contradict the End for which the Colony had a being, & are incompatible with the Terms on which the People Claim both Priviledges & Protection.

Were these Things rightly understood amongst the Inhabitants of the British Colonies in America, there wou'd be less Occasion for such Instructions & Strict Prohibitions, as are dayly sent from England to regulate their Conduct in many Points; the very Nature of the King wou'd be sufficient to direct their Choice in cultivating such Parts of Industry & Commerce only as wou'd bring some Advantage to the Interest & Trade of Great Britain, & they wou'd soon find by Experience that this was the solid & true Foundation whereon to build a real Interest in their Mother Country, & the certain Means to acquire Riches without Envy.

On the Other Hand where the Government of a Provincial Colony is well regulated, & all its business & Commerce truly adapted to the proper End, & design of its First Settlement; Such a Province like a Choice Branch, springing from the Main Root ought to be carefully nourish'd, & its just Interest well guarded; No little Partial Project or Party Gain, shou'd be Suffered to affect it, but rather it ought to be considered & weigh'd in the General Ballance of the whole State as a usefull & profitable Member.

For such is the End of all Colonies, & if this Use cannot be made of them, it wou'd be much better for the State to be without them. . . . From what has been said of the Nature of Colonies & the restriction that ought to be laid on their Trade, is in [it is] plain that none of the English Plantations in America can with any reason or good sence pretend to claim an Absolute Legislative Power within themselves; so that let their several Constitutions be founded on Ancient Charters, Royal Patent, Custom, Prescription or what other Legal Authority You please, yet still they cannot be possessed of any rightfull Capacity to contradict or evade the force of any Act of Parliament wherewith the Wisdom of Great Britain may think fit to effect them from time to time, & in discoursing of their Legislative Power (improperly so called in a dependant Government) we are to consider them only as so many Corporations at a distance invested with Ability to make Temporary By Laws for themselves agreeable to their Respective Situations & Clymates, but no ways interfering with the Legal Prerogative of the Crown or the true Legislative Power of the Mother State.

If the Governors & General Assemblys of the Several Colonies wou'd be pleas'd to consider themselves in this Light, one wou'd think it was impossible that they wou'd be so weak as to fancy, they represented the King, Lords & Commons of Great Britain within their little Districts; And indeed the useless or rather hurtfull & inconsistent Constitution of a Negative Council in all the Kings Provincial Governments has it is beleived contributed to lead them into this mistake, For so long as the King [h]as reserved unto himself in his Privy Council the Consideration of, & Negative upon all their Laws, the Method of appointing a few of the Richest & Proudest Men in a small Colony as an upper House, with a Negative on the Proceedings of the King's Lieutenant Governor, & the People's Representations seem not only to Cramp the natural Liberty of the Subject there, but also the Kings Just Power & Prerogative. . . .

It is generally acknowledged in the Plantations that the Subject is entituled by Birth & Right unto the benefit of the Common Law of England, but then as the common Law has been altered from time to time, & restricted by Statutes it is still a Question in many of the American Courts of Judicature wether any of the English Statutes which do not particularly mention the Plantations can be of Force there until they brought it over by some Act of Assembly in that Colony where they are pleaded; And this creates such Confusion, that according to the Art or influence of the Lawyers, before Judges who by their Education are but