new acts or laws made in them severally ; the several systems of the laws of those colonies grow more and more variant, not only from one another, but also from the laws of England."
Under the third article, I fear experience can well say, how powerfully, even in courts, the influence of the leaders of party have been felt in matters between individuals. But in these popular governments, and where every executive officer is under a dependence for a temporary, wretched, and I had almost said, arbitrary support to the deputies of the people, — it will be no injustice to the frame of human nature, either in the person of the judges, of the juries, or even the popular lawyer to suggest, how little the crown, or the rights of government, when opposed to the spirit of democracy, or even to the passions of the populace, has to expect of that support, maintenance, and guardianship, which the courts are even by the constitution supposed to hold for the crown — Nor would it be any injustice to any of the colonies, just to remark in this place, how difficult, if ever practicable it is in any of their courts of common law to convict any person of a violation of the laws of trade, or in any matter of crown revenue. Some of our acts of parliament direct the prosecution and punishment of the breach of the laws of trade, to take its course in the courts of Vice-admiralty : And it has been thought by a very great practitioner, that if the laws of trade were regulated on a practicable application of them to the state of the colony trade, that every breach of them should be prosecuted in the same way. That there should be an advocate appointed to each court from Great Britain, who, having a proper salary independent of the people, should be directed and empowered to prosecute in that court, not only every one who was an offender, but also every officer of the customs, who through neglect, collusion, oppression, or any other breach of his trust became such. — Here I own, was it not for the precedent already established by some of the laws of trade, I should doubt the consistency of this measure with the general principle of liberty, as established in the trials by a jury in the common law courts. If these precedents can reconcile these proceedings to the general principles of liberty, there can be no more effectual measure taken ; yet such precedents should be extended with caution. The defect in most, and actual deficiency in many of the colonies, of a court of equity, does still more forcibly lead to the necessity of the measure of some remedial court of appeal and equity. . . .
Thomas Pownall, The Administration of the Colonies (London, 1765), 75-80.
