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it could discharge a person from his allegiance, and restore him to a state of nature; it could make his estate to cease in the same manner as if the party possessing it were dead :(a) it even has been said, that it could do no wrong; yet Lord Holt has quaintly said, “That it may do several things that look pretty odd :" it can make Malta in Europe, and can make a woman a mayor, or a. justice of the peace ;(6) but it cannot change the laws of nature so as to make a woman a man, or a man a woman.(c) It can dissolve a marriage and enable the adulteress to intermarry with her paramour ;(d) it can enable a man to have or be an heir, who could not otherwise have or be an heir.(e) So an estate tail may be limited by a statute, without a dower, and the validity of such a limitation is not in such case to be measured by the rules of common law, for the reason that a statute can control those rules :(s) it can confirm conveyances defectively executed, and statutes for that purpose must be carried into effect. It may also, upon the request of parties, owners of real property, limit and vest their estates as they desire, or as they could do by deed (3)
§ 25. But whenever a statute which limits an estate in real property is inconsistent with the estate granted by a prior deed, its effect is not merely to cure formalities in its execution, but it must be held to create a new estate,
The parliament of England can regulate or new model the succession of the crown, as it did in the reign of Henry the VIII. and William the III. It can alter the
(a) Midway's Case, 6 Rep. 48.
established religion of the land, as was done in a variety of instances in the reign of Henry the VIII. and his three children; it can change and create afresh, even the constitution of the kingdom, and of parliament itself, as was done by the act of the union, and the several statutes for biennial and septennial elections. In short, it is even claimed that it can do every thing which is not naturally impossible.(a) That it is clothed with all the legal attributes of omnipotence in the scale of political existence.
The extent and qualifications of this last assumption will come under review in a succeeding chapter.
(a) Steph. Elect. L., Vol. i. p. 11.
§ 26. Having thus adverted to the legislative power of England, its origin, progress, and efficacy, it is proper that we should advert to some of the prominent facts connected with the origin of legislation in the United States. In doing so, it will become necessary to have recourse to the history of some of our early colonial governments. In doing so, however, the design of this treatise will necessarily restrict us to a consideration of only so much of the colonial history as relates to the subject of political power and legislation. Nor shall we be able to trace the origin, rise and progress of legislation in more than three of the colonies, to wit: those of Virginia, Massachusetts and Connecticut.
The first in order is that of Virginia. Under the charter of James the Ist, granting certain parts of the country to two colonies, subsequently known as that of Virginia and Plymouth, the political power of government was vested in a local council appointed and renewable by the crown ; legislative as well as executive power was vested in the president and council of the colonies, subject to the restriction touching ordinances as to life or limb, and that their enactments were to be conformable to the laws of England, and to be continued in force until declared void by the crown or council in England.
$ 27. No legislative power whatever seems to have been delegated to the colonists themselves. In fact there was so great destitution of legislative authority as to lead the American historian to conclude, that “by placing the legislative and executive powers in a council nominated by the crown and
guided by its instruction, every person residing in America seemed to be bereaved of the noblest privilege of a freeman." He accounts for this from the fact, that in the infancy of colonization and without the guidance of observation or experience, the ideas of men, with respect to the mode of forming new settlements, were not fully unfolded or properly arranged. At this earlicr period, it was impossible for them to foresee the future grandeur and importance of the communities which they were about to call into existence; and they were but illy qualified to concoct the best plans for their future government. The probabilities, however, are, that this withholding of a right to legislate from the colonists, originated in the spirit of the age, in the character of a monarch accustomed to claim the high prerogative of an arbitrary rule, and whose breast was not animated with a single liberal sentiment, in relation to the political rights of his subjects.(a)
§ 28. In 1610, Lord Delaware, under his commission being invested with the sole command of the colony of Virginia, appointed a council of six persons to assist him in the administration. "A very essential change seems at this time to have taken place in the form of the ancient Virginia Constitution, for we find substituted in the place of the original aristocratic council in England, the arbitrary rule of one man, over whose deliberations the people had no control.
§ 29. In 1619, we find that the spirit of the colonies, as they increased in numbers, partook of a more independent character. Hitherto they had been subject to the decision of martial law, which however, in all probability, was tempered by all the mildness with which the
(a) Robertson's History of America ; Book 9, Vol. i. p. 403.
circumstances of the case would admit, nevertheless they longed for the opportunity of exercising the exalted privilege of prescribing rules for their own goveriment. In compliance with the spirit which had then become prevalent among the colonies, in June, 1619, Sir George Yeardly called the first general assembly that was ever held in Virginia, which is the commencement of the history of the introduction of provincial legislatures. The numbers of the people, though small, had become so increased, their new settlements so dispersed, that eleven corporations appeared by their representatives in this convention, where they were permitted to assume legislative authority, and to exercise this noblest function of freemen. They sat in the same house with the governor and council, after the manner of the Scotch Parliament.(a)
The laws enacted in it scem neither to have been many, nor of great importance; but the meeting was highly acceptable to the people, as they beheld amongst themselves the foundations of a national constitution. In crder to make these rights more certain, the company issued a charter of ordinance on the 24th of July, which gave a legal and permanent form to the government of the colony.(6) Thus was formed and established the first representative legislature that ever sat in America, and this example of a domestic parliament to regulate all the internal concerns of the country, was never lost sight of, but was ever afterwards cherished throughout America as the dearest birthright of freemen.(c)
§ 30. The supreme legislative authority in Virginia, in imitation of that iu Great Britain, was divided, and
(a) Holme's American Annals, Vol. 1, pp. 169 to 195; Robertson's Amer., Book 9, Vol. i. p. 412. (6) Robt. Amer., Book 9, p.
412. (c) Story on Cons., Vol. i. book 1, p. 26.