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needed to cause an ear to be lent to those principles of government which emanated from the temporary disappointments and ill usage of Locke, and from the moral and social anarchy of the French school; which were new to the experience of mankind; which find no warrant in the best and greatest republics of antiquity; and which, whatever may be their intrinsic merits, and their adaptation to the circumstances of so vast an extent of territory as that occupied and waiting to be occupied by the United States, were not adopted (as will be hereafter shown) without the gravest misgivings on the part of some of the wisest men of the Revolution ; which are varied already in some important respects from what they sanctioned ; and are regarded with anxiety for the future by many of the most enlightened American citizens of the present, as they were of the past, generation.
PROGRESS TOWARDS INDEPENDENCE.
That communities, founded and nurtured as above described, should have combined to resist oppression, was no more than natural, and is a circumstance in the history of our race, at which, with Lord Chatham, “in the name of our common liberties and common character, we may be permitted to rejoice,” however much we may still lament the errors and prejudices which obscured the judgment of this country at that important period.
The steps which gradually prepared the public mind in America for resistance, and marked their progress towards independence,
, require to be briefly adverted to, because they
take their origin from a time long prior to that of the ultimate cause of disagreement and separation.
The favourite democratic theory of the foundation of the civil rights of the American colonists is, according to Jefferson and others holding similar extreme opinions, that they brought with them “the rights of men," of “expatriated men.” There is no need to repeat the well-known refutations of this assumption, and to show that there is no foundation in reason or history for any such abstract political rights; and that no two men, generally speaking, can be found to agree in defining what they mean, and how far they may be extended. It is sufficient for the present purpose to refer to the authority of the best American lawyers, who are agreed upon resting their civil rights upon a much more definite and intelligible principle. Mr. Justice Story states the matter thus :-“ The universal principle (and the practice has conformed to it) has been, that the common law (of England) is our birthright and inheritance,
and that our ancestors brought hither with them, on their emigration, all of it which was applicable to their situation."*
This also was the opinion of the Congress, as laid down in their celebrated Declaration of Rights, of the 14th of October, 1774. They unanimously resolved, “That the respective colonies are entitled to the common law of England,” and that “their ancestors at the time of their emigration were entitled” (not to the “rights of men,” but) “to all the rights, liberties, and immunities of free and natural-born subjects within the realm of England.” And they further resolved, “that they were entitled to the benefit of such of the English statutes as existed at the time of their colonisation, and which they have by experience respectively found to be applicable to their several and local circumstances.”*
This being so, the American colonies very early assumed the right in their legislative assemblies to deal with both the common and statute law according as their circumstances
* § 194, note.
required. The only limitation
their legislative power was contained in an express clause of all their charters, to the effect that their laws should not be repugnant, but, as near as might be, agreeable to the laws and statutes of England. “A very liberal
exposition of this clause seems, however,” says Mr. Justice Story, “always to have prevailed, and to have been acquiesced in, if not adopted by the Crown.”* The only part of the common law which they were in practice restrained from altering was that which related to their allegiance, and of the statute law, those Acts of Parliament which particularly related to them, and by which they were expressly bound;t and the interpretation given to this limitation confined it in theory, if not at first in practice, to matters of trade and commerce, and to regulations which bound them in a general system as integral parts of an empire.I
These rights of independent action they steadily vindicated, and indeed extended, in their constant refusal to submit to taxation
+ 7 & 8 Will. IIL. C. 22. § 9.
I § 173.