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THE DISCOVERY AND SETTLEMENT OF THE COLONIES OF
§1. IN March, 1496, Henry the Seventh, King of England, commissioned John Cabot and his three sons, Sebastian, Lewis, and Sanctius, to set forth on a voyage of discovery, and to conquer and occupy any lands not already in the possession of a Christian nation. Under this commission, Cabot and his son Sebastian departed in May, 1497; and, after discovering the islands of Newfoundland and St. Johns, sailed along the coast of the mainland north and south, and claimed for the English king the territory from the Gulf of Mexico to an indefinite extent on the north, without, however, attempting either settlement or conquest.
§ 2. From this discovery by Cabot, originated the title by which England claimed North America. That title depended upon the first discovery of the continent, and was called the Right of Discovery. It was a principle adopted in the practice of the nations of Europe, that the first discovery of unknown countries gave to the govern
ment, whose subjects had made the discovery, a title to the possession of such newly-found lands.
§ 3. Under this title the original inhabitants were permitted to remain in the territory; but they were restrained from selling or granting its soil, except to the sovereign by whose subjects it had been discovered, who claimed for himself the sole right to dispose of it; consequently, no other persons could acquire a title from the natives, either by purchase or by conquest.
§ 4. There does not seem to be any just reason why the first discovery of a country should give a right to the possession of it, especially where it is inhabited, as North America was. The rule was probably adopted in order to prevent conflicting claims by different governments to the same territory.
§ 5. Uninhabited countries cannot be said to belong to any particular nation, for no nation has taken possession of them. Whenever, therefore, a nation first discovers uninhabited lands, it has a right to take possession of them, -and its title will be regarded by other nations as good, provided the discovery is followed up by an actual settlement, or by colonizing it within a reasonable time, or by making other use of it; but, if some one of these things is not done, the title is considered to be incomplete and abandoned, and the land will be open to fresh occupants.
§ 6. Although the titles derived from discovery may not originally have been very just, their validity, after a lapse of several centuries, cannot now be overthrown. By successive transfers they have become vested in the several States and in the United States, and they have been recognised and acceded to by the Supreme Court of the United States. We still hold this country under the title by which it was originally acquired, and we claim
that that title has, by treaties or by grants, descended
§ 7. In the settlement of a new country, there is a distinction in regard to the laws which become of force there. If the country be uninhabited, the laws of the nation to which the settlers belong, spring immediately into operation, so far as they are applicable to the situation and local circumstances of the settlers, who would otherwise be without laws to govern them. If the country be inhabited, and acquired by treaty, conquest, or purchase, the general rule is, that the laws already existing remain in force until altered or repealed, unless they be contrary to religion or morality.
§ 8. Although North America was inhabited at the time it was colonized, the colonists disregarded the occupancy and claims of the Indian tribes, and considered themselves as settling an unoccupied country. We must, therefore, regard them as bringing with them to the new world the laws of England, so far as they were applicable to their situation, and it was so resolved by the Continental Congress in the Declaration of Rights.
§ 9. In fact, the charters under which the colonies were settled (except that of Pennsylvania) expressly declared that all subjects of the king, and their children, inhabiting therein, should be deemed natural-born subjects, and should enjoy all the privileges and immunities thereof.
The colonies were not affected by acts of Parliament passed after the date of their settlement, unless they were expressly named therein.
§ 10. The names of the thirteen original colonies were Virginia, Massachusetts, New Hampshire, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, and
Georgia. These colonies have, with reference to their form of government, been divided into three classes, as follows:
(1.) Provincial or Royal Governments.
(2.) Proprietary Governments.
(3.) Charter Governments.
§ 11. Under the Provincial governments, a governor was appointed by the king, as his deputy, to rule according to his instructions. The king also appointed a council to assist the governor and aid in making laws. The The governor established courts and raised military forces. He had power to call together legislative assemblies of freeholders and others, in which the council formed an upper house, he himself exercising a negative upon their proceedings, as well as the right to adjourn them for a time, or to dissolve them. These assemblies made local laws, which had to be submitted to the king for his approval or disapproval.
New Hampshire, New York, New Jersey, Virginia, North and South Carolina, and Georgia, were provincial colonies.
§ 12. In the Proprietary governments, the king granted his rights and privileges to certain individuals, who became proprietaries of the colony, and held it as if it were a feudal principality. These proprietaries appointed the governor, directed the calling together of the legislative assemblies, and exercised all those acts of authority which in the provincial governments were exercised by the king.
At the time of the Revolution there were but three colonies of this description: Maryland, of which Lord Baltimore was proprietary, and Pennsylvania and Delaware, of which William Penn was proprietary. The Carolinas and New Jersey, which had been proprietary
governments, became Royal governments before the Revolution.
§ 13. In the Charter governments, the powers and rights were vested by a charter from the king in the colonists generally, and were placed upon a more free and democratic foundation. In Connecticut and Rhode Island, the governor, council, and the assembly, were chosen every year by the freemen of the colony. But by the charter granted by William and Mary, in 1691, to the colony of Massachusetts, the governor was appointed by the king, the council chosen annually by the general assembly, and the house of representatives chosen by the people, though in other respects the charter was quite liberal in its provisions.
At the Revolution, Massachusetts, Rhode Island, and Connecticut were the only charter governments existing.
§ 14. Notwithstanding these diversities in the form of their government, the situation and circumstances of the colonists were similar in several very important particulars. They were entitled to the rights and liberties of English subjects, and to the advantages of the laws of England. They were mostly a sober, industrious, and persevering people. They established provincial legislatures to regulate their local affairs. They did not hold their lands by any burdensome feudal tenures. The governments were administered upon popular principles, and generally marked by a liberal policy.
§ 15. Many of the settlers in the colonies emigrated from England at a time of great religious and political excitement, and were filled with the spirit of liberty, of free inquiry, and of opposition to the prerogatives of the crown and to an established church, which such excitement had produced. Schools and colleges were founded, and re