The Colonies, 1492-1750

by Reuben Gold Thwaites

Differences only in form.

With all these differences in form, the principle at work was the same. From the beginning the American colonists were hampered in the work of their general assemblies, at first by commercial companies, and then by royal and proprietary interference; nevertheless, in the conduct of their purely local affairs they often exercised a greater degree of freedom than their brethren in England. It is the purpose of this and succeeding volumes to show how, amid many shiftings, unions, and divisions, these isolated, self-governing English colonies, planted independently here and there in the American wilds, unconscious of the great future before them, were, by an orderly, logical progression of events, the trend of which was often not noticeable to the men of the time, successfully merged, at first into states, and finally into a nation.

25. Colonial Governments.

Social distinctions.

The colonists were accustomed in England to specific ranks and orders of society. In America, while there were from the first sharp social distinctions, the fact that the great body of the settlers began life in the wilderness side by side, on an equal basis, was favorable to a democratic sentiment. Nobility was connected, in English minds, with great landed estates, of which there were few in America outside of Virginia, Maryland, South Carolina, and New York. Under Locke's constitution it was attempted by the proprietaries formally to divide Carolina society into groups, with hereditary titles; but the project could not be carried out. Nevertheless, Southern society was in the main as distinctly stratified, after the introduction of slavery, as though titles had existed. New England life was calculated strongly to foster the spirit of independence; and the slave class was not large enough materially to affect social conditions. Still, there was an acknowledged and respected aristocracy, founded on ancestry, education, commercial success, and individual merit, but lacking staying qualities; for it had neither large estates nor primogeniture to back it. The scheme of Lord Brooke, Lord Say and Sele, and others, to introduce hereditary rank in Massachusetts (1636) fortunately failed to receive popular approval.

Colonial governors.

Used as they were to the exercise of the royal prerogative, the colonists accepted the free exercise by the governors of the privileges of appointment and veto, whether those officials were selected by the Crown or by proprietaries. In addition to these privileges, the governor of a royal colony was the bearer of royal instructions and the medium of royal directions; he was the executive officer, the granter of pardons (except in capital cases), the commander of the military and naval forces, the head of the established church, and the chief of the judiciary; and he could summon, prorogue, and dissolve the assembly. The assembly held the purse-strings, however, and the actual power of the governor was consequently in a great degree curtailed. The record of colonial politics is largely made up of disputes between the representatives and the executive, in which the assembly usually won by withholding supplies until the governor came to its terms.

The judiciary.

The judiciary system was alike in no two colonies, but there were certain resemblances in all. There were commonly local justices of the peace, with jurisdiction limited to petty civil cases; sometimes these were elected by the freeholders of the district, but generally they were appointed by the governor. Then came the county courts, the members of which were appointees of the governor, except in New Jersey, where they were elected. These county judges were representative gentlemen, and not trained in the law. They had criminal jurisdiction except in capital cases, and final jurisdiction in civil cases not involving large amounts; the limit was £20 in Virginia and £2 in Maryland, and elsewhere between these extremes. Next was the provincial, supreme, or general court: ordinarily this was composed of the governor, as chancellor, and the members of his council; but in several colonies this colonial court was a separate body, appointed by the governor, who, with his council, constituted a still higher court of appeals and chancery. From the highest courts a suitor could, in important cases, carry his appeal to the king in council. The common and statute law of England prevailed when provincial law was silent on the subject. Sometimes questions arose upon the validity of provincial statutes: when the courts found that they were not in accordance with the charter, they declared them void; but the matter could be carried to the English Privy Council for ultimate decision. This was the germ of the power of the United States Supreme Court to decide on the constitutionality of a law.

Charters.