the king's presence, but 8. That no pardon under the Great Seal of Engupon "good land be pleadable to an impeachment by the Commons in Parliament. behavior." CONTEMPORARY EXPOSITION BISHOP BURNET (1724) The matter that occasioned the longest and warmest debates in both houses was an act abjuring the pretended Prince of Wales, and forswearing to the king by the title of rightful and lawful king, and to his heirs, according to the act of settlement. . . . The design of this act was to discover to all, both at home and abroad, how unanimously the nation concurred in abjuring the pretended Prince of Wales. GILBERT BURNET, History of His Own Time. 698. CRITICAL COMMENT BLACKSTONE'S COMMENTARIES (1765) The absolute rights of every Englishman, which taken in a political and extensive sense, are usually called their liberties, and as they are founded on nature and reason, so they are co-eval with our form of government. . . The vigour of our free constitution has always delivered the nation from embarrassments . . . and their fundamental articles have been, from time to time, asserted in Parliament as often as they were thought to be in danger. . . . First, by the Great Charter of Liberties, which was obtained sword in hand from King John. . . . Afterwards by the Statute called Confirmatio Chartarum whereby the Great Charter is directed to be allowed as the common law. . . . Then after a long interval, by the Petition of Right, which was a parliamentary declaration of the liberties of the people. . . . By the many salutary laws, particularly the Habeas Corpus Act, passed under Charles II. To these succeeded the Bill of Rights . . . which declaration concludes in these remarkable words; "and they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties." Lastly, these liberties were again asserted at the commencement of the present century in the Act of Settlement, whereby the crown was limited to his present Majesty's illustrious house; and some new provisions were added at the same fortunate era, for better securing our religion, laws, and liberties, which the statute declares to be "the birthright of the people of England," according to the ancient doctrine of the common law. SIR WM. BLACKSTONE, Commentaries on the Laws of England. I. 127–129. DICEY (1885) The descent of the Crown was varied and finally fixed under the Act of Settlement (12 & 13 Will. III. c. 2); the Queen occupies the throne under a parliamentary title: her claim to reign depends upon and is the result of a statute. This is a proposition which at the present day no one is inclined either to maintain or to dispute; but a glance at the Statute-book shows that not two hundred years ago Parliament had to insist strenuously upon the principle of its own lawful supremacy. Albert V. DICEY, Introduction to the Study of the Law of the Constitution. 41. RANSOME (1895) The circumstance that the Act of Settlement was passed by a parliament in which the Tories were predominant, turned out to be of great importance, for it committed the Tories, as a party, to the principle of the Hanoverian succession, and as it was an arrangement heartily approved by the Whigs, the matter was thus placed outside the lines of party politics. CYRIL RANSOME, Advanced History of England. 699. CHAPTER XI SPIRIT OF COLONIAL RIGHTS (1721-1765) SUGGESTIONS As we approach the intensive study of the Colonial period, no one English statute or New England charter stands out peculiarly as representative of the spirit of political freedom, which was a product of the system of government in the American Colonies. The Defence of the New England Charters, too long to use in full, touches upon many subjects not purely constitutional. Jeremiah Dummer was an able exponent of New England's principles. The existing difficulties which had arisen are as well set forth in his "Defence" as in any one document of the period. The contemporary exposition gathered about this document is not in itself so closely critical of the articles of the document as with its spirit. From this time until after the formation of the Articles of Confederation it is the general movement of the times, and not the precise criticism of any one document which dominates the thought of the contemporary writer. For Outlines and Material, see Appendix A. DOCUMENT Extracts from "A Defence of the New-England Charters" (1721) A Defence of the New England Charters, 1721, 3-74. Puritan by Jeremiah] Dummer. To the Right Honourable, the Lord Carteret, one of Invited and encouraged by these advantages, a considerable number of persons dissenting from the Emigration, discipline of the established church, though agreeing 1628. with it in doctrine, removed into those remote regions, upon no other view than to enjoy the liberty of their consciences without hazard to themselves, and offence to others. Thus the colonies went on XIII. 66 Oak" based upon the in was carried increasing and flourishing, in spite of all difficulties, till the year 1684, when the city of London lost its charter, and most of the other corporations in Eng- Magna land, influenced by fear or flattery, complimented Charta, Art. King Charles with a surrender of theirs. In this general ruin of charters at home, it could not be expected that those in America should escape. It was then that a quo warranto was issued against the governour and company of the Massachusets Bay, and soon after a judgment was given against them in Westminster Hall. At the same time Sir Edmund Andros, then the King's governour of New England, did by order from court repair to Hartford, the The story of capital of Connecticut, with armed attendants, and the Charterforcibly seized their charter for the King. Rhode Island, finding there was no remedy to be had, made cident that a vertue of necessity, and peaceably resigned theirs. the charter But as soon as the news arrived of the happy off and conrevolution in England, these two last mentioned cealed when governments reassumed their charters, and put taken. themselves under the old form of administration, in which they have continued ever since. The gov- Accomernment of the Massachusets, cautious of offending plished their superiours at home, and considering there was removal of a judgment against them in the court of Chancery, though most unfairly and illegaly obtained, did not think it adviseable to make this step; but sent She was too agents to court to supplicate, in a humble manner, strong and too proud to the restoration of their charter. To what misman- adopt the agement, or other cause it was owing, that they did conciliatory not obtain it, and that this loyal corporation was Conn. and the only one either in Old or New England that R. I. did not recover its lost liberty under our late glorious deliverer King William, 'tis now too late, and therefore to no purpose, to enquire. A new charter was ordered, which the province now has, and is not much more than the shadow of the old one. 66 [Herewith follow the Propositions set forth in the Defence," and such charges as were brought against the colonists: -] about to be easily upon Andros in 1690. course of 1st Prop. That the charter governments have a good and undoubted right to their respective charters. 2nd Prop. That these governments have by no misbehaviour forfeited their charters. The subjects abroad claim the privilege of Magna Charta, which says that no man shall be fined above the nature of his offence, and whatever his miscarriage be, a "salvo contenemento fuo" is to be observed by the judge. If, therefore, they have committed faults, let them be chastized, not destroyed. Let not their corporations be dissolved for any other cause than a failure of their allegiance. That they have neglected the defence of the inhabitants. Charge 1. Charge 2. That they have exercised arbitrary power. Charge 3. That the Acts of Trade are dis regarded. Charge 4. That they have made laws repugnant Charge 5. That the charter colonies will grow 3rd Prop. That it is not the interest of the 4th Prop. That it seems inconsistent with justice to disfranchize the charter colonies by an act of Parliament. CONTEMPORARY EXPOSITION ANONYMOUS, "PLAIN STATE OF THE ARGUMENT" (1724) It would be inconsistent to say that a King has any power at all, but what is derived ultimately from the People through the Parliament. Whatever deeds the King executes as King: whatever government he settles; whatever charters he grants must, upon this account, be subject to the inspection, the controul, the |