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indifferently Qualified for that Service, they allow the Force of the particular Statutes, and at other times reject the whole especially if the Bench is inclinable to be partial, which too often happens in those new & unsettled Countries; & as Mens Liberties & Properties in any Country chiefly depend on an impartial and Equal Administration of Justice, this is one of the most Material Grievances which the Subjects of America have just Cause to complain of; But while for the want of Schools & other proper Instructions, in the Principles of Moral Vertue, their People are not so well Qualified even to serve upon Juries, & much less to Act on a Bench of Judicature, It seems impracticable to provide a Remedy until a Sufficient Revenue be found out amongst them to support the Charges of sending Judges from England to take their Circuits by turns, on the several Colonies on the Main, which if thought worthy of a Consideration will appear neither to be improper nor unpracticable; & until that can be done all other Attempts to rectify their Courts of Law will be fruitless, & may therefore be Suspended. . . .

A Militia in an Arbitrary & Tyrannical Government may possibly be of some Service to the Governing Power, but we learn by Experience that in a free Country, 'tis of little Use; the People in the Plantations are so few in proportion to the Lands, which they possess, that Servants being scarce, & Slaves so excessively dear, the Men are generally under a necessity there to work hard themselves in Order to provide the common necessary's of Life for their Families, so that they cannot Spare a days time without great loss to their Interest. . . .

... The Wisdom of the Crown of Britain therefore by keeping its Colonies in that Situation is every [very] much to be applauded while they continue so; it is morally impossible that any dangerous Union shou'd be form'd among them, because their Interest in Trade & all manner of Business, being entirely seperated by their Independancy, every Advantage that is lost or neglected by one Colony is immediately picked up by another, & the Emulation that continually subsists between them in all manner of Intercourse & Traffick, is ever productive of Envys, Jealousies & Cares how to gain upon each others Conduct in Government or Trade, Every one thereby endeavouring to magnifie their Pretentions to the Favour of the Crown by becoming more usefull than their Neighbours to the Interest of Great Britain. . .

...

All that has been said with Respect to the Improvement of the Plantations, will it is supposed signifie but very little unless a Sufficient Revenue can be raised to support the needfull Expences, in Order to

which it is humbly submitted whether the Duties of Stamps upon Parchment & Paper in England, may not with good reason be extended by Act of Parliament to all the American Plantations.

William Byrd, The History of the Dividing Line, between Virginia and North Carolina, etc. (edited by Thomas H. Wynne, Richmond, 1866), II, 215-227 passim.

50. 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.

HE Subject-Matters of this Section according to my first Plan are

THE of 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 PaperCurrencies; 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 NorthAmerican Colonies.

A1

LL 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 Congregationalists or Independants, 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 MotherCountry 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 Gov

ernor and Council, such are Newfoundland, Nova-Scotia, Hudson's-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 GreatBritain; 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 ViceAdmiralty's 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.

William] 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 Publicist's 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

N 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

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