The Evolution of the Constitution of the United States
Showing that it is a Development of
Progressive
History and not an Isolated Document
Struck Off at a Given
Time or
an Imitation of English
or Dutch Forms of
Government
By
Sydney George Fisher
Philadelphia
J. B. Lippincott Company
Mdcccxcvii
Preface
COPYRIGHT, 1897,
BY J. B. LIPPINCOTT COMPANY.
HISTORIES of the Constitution usually describe the labors of its framers in the Convention of 1787 and the contests of political parties over the adoption of the instrument by the requisite number of States in the following year, together with such changes or developments as have taken place since that time. The works which have touched on its sources or origin have treated it as invented by the convention which framed it, or have sought in England or other European countries for forms of government which were like it or might have suggested its various provisions.
Having for a long time been convinced that the Constitution is neither an invention nor an imitation, but almost exclusively a native product of slow and gradual growth, I have in this book undertaken to trace back, through previous American documents in colonial times, every material clause of it. These documents are very numerous, and consist of twenty-nine colonial charters and constitutions, seventeen Revolutionary constitutions, and twenty-three plans of union, — in all, sixty-nine different forms of government which were either in actual or in attempted operation in America during a period of about two hundred years, from 1584 to 1787. These constituted the school of thought, the experiments, and the training which in the end produced the national government under which we now live.
The time of two hundred years was sufficiently long, and the sixty-nine different forms of government were certainly numerous and varied enough, to bring about the final result; and they account for the final result in a more clear, complete, and satisfactory manner than any of the theories of sudden inspiration or imitation of England or Holland that have been broached.
In order to show the evolution in all its details, I have divided two of the chapters into sections. Each section traces back a clause of the Constitution through all the previous documents, with quotations from each document showing the gradual development, the experience that was acquired, or the experiments that were made. This has made necessary a great deal of small print, and sometimes rather long quotations from the old documents, which were very verbose. But the reader has it all before him, and can, in most instances, see at a glance the nature of the development without any laborious search through the sixty-nine documents. I have also tried to lessen his efforts, wherever I could, by comments and summaries.
Besides this detailed analysis, there are chapters giving a general view of the growth and discussing the supposed resemblances to European forms of government The last chapter deals with Mr. Campbell's theory that part of the Constitution and many other American institutions were derived from Holland.
PHILADELPHIA, February, 1897.
Contents
PAGE
CHAPTER I. CONFUSED IDEAS AS TO THE ORIGIN OF THE CONSTITUTION .. 11
CHAPTER II. THE COLONIAL CHARTERS AND CONSTITUTIONS........ 26
CHAPTER III. THE CONSTITUTIONS OF 1776................ 70
CHAPTER IV. THE ENGLISH SOURCES OF THE CONSTITUTION........ 90
CHAPTER V. THE EVOLUTION FROM THE COLONIAL CHARTERS SHOWN IN DETAIL......................105
CHAPTER VI. THE EVOLUTION OF FEDERALISM..............215
CHAPTER VII. THE EVOLUTION OF FEDERALISM SHOWN IN DETAIL.....267
CHAPTER VIII. CLAUSES OF THE CONSTITUTION WHICH WERE OF SHORT DEVELOPMENT ....................310
CHAPTER IX. DUTCH SOURCES......................315
APPENDIX. CONSTITUTION OF THE UNITED STATES...........375
Documents in the Evolution from the Colonial Charters
1. Sir Walter Raleigh's Charter, 1584.
2. Virginia Charter, 1606.
3. Virginia Charter, 1609.
4. Virginia Charter, 1611-12.
5. New England Charter, 1620.
6. Grant of New Hampshire, 1629.
7. Massachusetts Charter, 1629.
8. Maryland Charter, 1632.
9. Grant of New Hampshire, 1635.
10. Fundamental Orders of Connecticut, 1638.
11. Grant of Maine, 1639.
12. Connecticut Charter, 1662.
13. Charter of Carolina, 1663.
14. Rhode Island Charter, 1663.
15. Grant to the Duke of York, 1664.
16. Concessions of East Jersey, 1665.
17. Charter of Carolina, 1665.
18. Locke's Carolina Constitution, 1669.
19. Grant to the Duke of York, 1674.
20. Concessions of West Jersey, 1677.
21. Commission for New Hampshire, 1680.
22. Pennsylvania Charter, 1681.
23. Pennsylvania Frame of April 2, 1683.
24. Pennsylvania Frame, 1683.
25. Massachusetts Charter, 1691.
26. Pennsylvania Frame, 1696.
27. Pennsylvania Charter of Privileges, 1701.
28. Explanatory Massachusetts Charter, 1726.
29. Georgia Charter, 1732.
30. New Hampshire Constitution, begun December 21, 1775; finished January 5, 1776.
31. South Carolina Constitution, adopted March 26, 1776.
32. Virginia Constitution, begun May 6, 1776; adopted June 29, 1776.
33. New Jersey Constitution, begun May 26, 1776; adopted July 3, 1776.
34. Delaware Constitution, begun August 27, 1776; adopted September 21, 1776.
35. Pennsylvania Constitution, begun July 15, 1776; adopted September 28, 1776.
36. Maryland Constitution, begun August 14, 1776; finished November 11, 1776.
37. North Carolina Constitution, begun November 12, 1776; finished December 18, 1776.
38. Georgia Constitution, begun October 1, 1776; finished February 5, 1777.
39. New York Constitution, begun July 10, 1776; finished April 20, 1777.
40. Vermont Constitution, begun July 2, 1777; finished July 8, 1777.
41. Rejected Massachusetts Constitution, 1778.
42. South Carolina Constitution, passed as an act of assembly March 19, 1778; went into effect November, 1778.
43. Rejected New Hampshire Constitution, 1778.
44. Massachusetts Constitution, begun September 1, 1779; finished March 2, 1780.
45. New Hampshire Constitution, begun June 12, 1781; finished October 31, 1783; adopted June 2, 1784.
46. Vermont Constitution, 1786. The Constitution, 1787.
Documents in the Evolution of Federalism
1. New England Confederation of 1643.
2. Commission of Council for Foreign Plantations, 1660.
3. William Penn's Plan of Union, 1696.
4. Report of Board of Trade on union of New York with other colonies, 1696.
5. D'Avenant's Plan of 1698.
6. A Virginian's Plan, in "An Essay on the Government of the English Plantations on the Continent of America," 1701.
7. Livingston's Plan, 1701.
8. Earl of Stair's Proposals, 1721.
9. Plan of the Lords of Trade, 1721.
10. Daniel Coxe's Plan, in "A Description of the English Province of Carolina," 1722. 11. Kennedy's Plan, 1751.
12. Franklin's Plan, 1754.
13. Richard Peters's Plan, 1754.
14. Hutchinson's Plan, 1754.
15. Plan of the Lords of Trade, 1754.
16. Dr. Samuel Johnson's Plan, 1760.
17. Galloway's Plan, 1774.
18. Franklin's Articles of Confederation, 1775.
19. The Articles of Confederation, 1778.
20. Drayton's Articles of Confederation, 1778.
21. Webster's Sketches of American Policy, 1785.
22. Randolph's Plan, 1787.
23. Pinckney's Plan, 1787. The Constitution, 1787.
The Evolution of the Constitution of the United States
CHAPTER I.
CONFUSED IDEAS AS TO THE ORIGIN OF THE CONSTITUTION.
To set men thinking and incite them to conduct investigations of their own is often more important than to persuade and convince them. No words of Mr. Gladstone have been so much considered by the American people, and none have aroused them to so much research, as those in which he said that "as the British Constitution is the most subtle organism which has proceeded from progressive history, so the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man."
At first glance there seems to be a compliment in the striking, clear-cut language of the great English statesman, and if the phrase had been applied to some nations — the French, for example — they would probably continue to think it complimentary. But along with the first impression of a compliment the Anglo-Saxon instinct of Americans received an impression which it resented. Our people were at first pleased, but the next moment they were irritated at the thought that their government had been made off-hand.
They have the reputation of being smart and quick, — smarter and quicker than their cousins the British, — and they rather like to be told so. But when you tell them that they were smart and quick in creating a political institution you touch another and far deeper feeling. You cut them off from their past; and veneration for their past, even their far-distant past, is a passion which, though often secretly nourished, fills a large part of their lives. And so it has come to pass that, of all the sentences the Liberal leader of England ever wrote, there is none which Americans have been so anxious to refute as the one in which he doubtless thought he was saying what would be most surely acceptable to them.
Soon after his assertion became generally known, dissent from it began to appear, here and there, in addresses and newspaper and magazine articles, and now there are whole books on the subject, all laboring to show that the Constitution was not "struck off at a given time," but that its source and lines of development stretch far back into the past.
Unfortunately, these learned gentlemen who trace the sources of the Constitution do not agree with one another. In fact, there is a most extraordinary and even ridiculous contradiction in the sources they assign. Mr. Bryce, in his great work, "The American Commonwealth," finds the sources in the British government of King, Lords, and Commons, and he is followed by Taylor, Stevens, and others, with variations of the same general opinion; while Foster, in his recent work on the Constitution, seems somewhat inclined to go back to Mr. Gladstone's view. But Mr. Campbell, in his "Puritan in Holland, England, and America," denies all English sources, and gives our institutions an origin in Holland.
When we look further into the general subject of the sources of American institutions, municipal as well as constitutional, we find the same tendency to assign queer foreign origins. The New England township system, according to some learned people, is of German origin. The New England town, they say, especially in colonial times, with its common land and self-government, almost exactly resembled the old Teutonic village.
Between the occurrence of these two resemblances centuries of time elapsed when such towns were unknown to the race and forgotten by it. But a few centuries are a mere trifle to a man who has detected one of these mystical resemblances. By a little skilful language, a "doubtless" or a "perhaps" or an ingenious hypothesis, he will easily jump aeons of time and oceans of space. Only let him find in Mexico or Yucatan a building or some pottery with an outline like something in Persia, and five thousand years and three thousand miles of ocean are nothing. He will put volcanoes under the water and raise islands, and then an ancient continent, until he has made history to suit him.
Every generation seems to have its crop of these extraordinary suggestions and hypotheses, which their advocates soon extend beyond their proper sphere of mere suggestions and insist that they are certainties. For many years after the Revolution it was supposed that some of the American Indians were descended from a lost tribe of Welshmen who came to this continent under a leader called Madoc. Remains of burial mounds and ancient customs were found, which the learned insisted were very like remains in Wales, and they heaped up the suggestions until they had what they thought was proof. Fortunately, the craze had passed away when the tribe of Modoc Indians became prominent soon after the Civil War, or we might have had it continued indefinitely.
During the same period many people believed that all our Indians were descendants of the lost tribes of Israel. They found many resemblances, and the one which impressed them most was that some of the Indians had cities of refuge like the Israelites. Cooper satirized these people in his novel "Oak Openings," in which there is a character who proves the connection by the passage in the Psalms; "God shall wound the head of his enemies, and the hairy scalp of such a one as goeth on still in his wickedness." But these ancient fancies are hardly any worse than Mr. Campbell's notion that our American institutions, including the New England town system, are derived from Holland.
I admit that there is great fascination in these speculations, and I admit that there may possibly be something more than fascination in the theory of the recurrence of ideas and institutions at long intervals in the history of a race. That passage in Du Chaillu's "Viking Age" in which he asserts that the Norsemen, the ancestors of the English and Americans, had a federal government like that of the United States, is certainly most interesting and impressive:
"Every Herad was independent of the Fylki in its local affairs, and every Fylki was independent one from the other, each having self-government. When the affairs of the country required the presence of all the people, then the boendr of the Herads and Fylki met together at a general Thing, called Allsherjar Thing (Thing of all the hosts), and all had to abide by the decision taken ... The closest approach to this ancient form of government is that of the United States."
But before we resort to these far-fetched and romantic speculations we should exhaust the nearer and more accurate method, and this is what the writers on the sources of the American Constitution have failed to do. Taking the Constitution as it was framed in 1787, they immediately look for something in Europe from which they assume it must have been copied, instead of tracing its origin backward from itself through the two hundred years of the colonial period.
If I find on American soil the footprints of a man, and wish to discover whence he came, I surely ought not to assume at once that he is a foreigner and take the next steamer for England or Holland to see if I can find footprints over there that are like his. It would be better, it seems to me, to start backward on his trail from the very spot where I find it; for it may be that he is a native, and I may be able to follow his tracks for hundreds of miles in this country, and, when I come to his house, find that he and his ancestors have been living there for many generations. In any event, I should follow back his track until it ends on the sea-shore, and after that search for him in other countries.
This is, I believe, the only sound, legitimate, and scientific way to trace the origin of a public document or institution. We must go back, step by step, in the direct line of ancestry, and keep in that line until it ends. There must be no jumping, no wanderings aside, and no searching for vague resemblances in the world at large.
If the writers on the sources of the Constitution had followed this plan there would, I think, be less disagreement among them, or at least not the extraordinary contradiction which we now find. The contradiction follows naturally enough from their method; for as soon as they leave the direct line of growth and begin to search for resemblances everywhere they will find plenty of them. Human nature is in a general way much the same all the world over, and human beings have been laboring for many centuries and encountering the same problems and conditions in one country as in another. Within recent years vast quantities of historical details of almost every country have been published, and a man who has a fancy for some particular nation can easily frame a specious argument to show how other nations have apparently copied from it.
There have been instances of direct and literal imitation; but they are comparatively rare, and very rare among the Anglo-Saxon race. The instances where one nation has been influenced in a general way by what it knows of the workings of institutions in another nation are more numerous; but in these instances there is not what would properly be called an imitation or a taking. Very often the institutions of the foreign country are considered as an example of what should not be done. Some of the provisions of our own Constitution were influenced in this way by what were supposed to be evils in the English system.
In other cases a nation, having to solve a problem which has troubled it for many years, works out in time what seems to be a solution, and is the more convinced that it will prove successful because something like it has been adopted by another country. The foreign institutions are used in these instances argumentatively, and are not imitated in the true sense of the word, because the nation has an experience of its own with which it is working, and it uses the foreign institution merely to reinforce its own ideas.
For example, in colonial times our people were very familiar with the veto power in the colonial governors, and also in the king. The governors could, in many instances, veto the laws of the assemblies immediately on their passage, and the same laws had to be submitted to the king, who had a certain number of years, usually about five, to examine them, and at the end of that time, if he disapproved, he could annul them. These vetoes of governors and king were absolute. They killed the laws, and there was no arrangement for passing the laws over their veto by a two-thirds vote. But the people suffered so much inconvenience from these absolute vetoes that when they came to make their own State constitutions in the Revolution they usually gave their governors no veto power at all, until at last New York hit upon the plan of a modified veto, which could be overcome by a two-thirds vote of the legislature; and when the National Constitution was framed this same modified veto was given to the President. It is certainly not an imitation of the veto power of the English king, for it was developed solely out of American experience of the evils of the king's absolute veto.
The United States Senate is, as we shall see, a gradual development from the Governor's Council of colonial times, which was first a mere advisory council of the governor, afterwards a part of the legislature sitting with the assembly, then a second house of legislature sitting apart from the assembly, as an upper house; sometimes appointed by the governor, sometimes elected by the people, until it gradually became an elective body, with the idea that its members represented certain districts of land, usually the counties. It had developed thus far when the National Constitution was framed, and it was adopted in that instrument so as to equalize the States and prevent the larger ones from oppressing the smaller ones. This was accomplished by giving each State two Senators, so that large and small were alike. The language in the Constitution describing the functions of the Senate was framed principally by John Dickinson, who at that time represented Delaware, — one of the smaller States of the Union, — which had suffered in colonial times from too much control by Pennsylvania.
The Senate as it exists to-day is therefore primarily the result of our own experience. But some writers insist on seeing in it an imitation of the British House of Lords, and Mr. Campbell, finding that the States-General of the Netherland Republic was composed of representatives of states and that each state had only one vote, and that the framers of our Constitution were familiar with Netherland institutions, jumps to the conclusion that the United States Senate was a Dutch importation.
If it really had been an imitation from the Dutch, there would be some evidence of it in the debates of the Constitutional Convention. The Dutch resemblance would have been urged by some as a reason in its favor and by others as a reason against it Afterwards, when the Constitution was before the people for adoption and closely discussed and criticised in numerous pamphlets and newspapers, the Dutch imitation, if there had been one, would have been surely referred to either by friends or by enemies. But Mr. Campbell cites no evidence of this sort, and, as a matter of fact, there is none.
The sources of our Constitution are to be found in the colonial period of about two hundred years which preceded the framing of the Constitution, in 1787. Literally, the time began with Sir Walter Raleigh's charter of 1584, which makes a period of two hundred and three years. Those two hundred years were ample for formation and growth, and they cannot be safely skipped. But writers have thus far dismissed them, or summarized them in a sentence or two, and rushed off to Europe to look for foreign sources.
It must be confessed that the supposed foreign sources make easier and more interesting work. The material is all at hand, has been well analyzed and arranged by eminent scholars, and all educated people are more or less familiar with it But our colonial history is an unknown land of scattered material, — long, wordy documents difficult to read, — and has been so neglected, and the little research that has been made in it so stupidly done, that most people instinctively avoid it. There is supposed to be little or nothing in it, and a habit has grown up of believing that all of value or interest in our history began with the Revolution.
But that despised colonial period contains all our beginnings; and not only our beginnings, but a large part of our maturity; for at the time the Constitution was framed, in 1787, our people had had a vast experience in constitution-making, — greater and more varied, I am inclined to think, than any other people of the world. They had been living under charters from the Crown, — constitutions of their own making, — and some of them without either charters or constitutions, for nearly two centuries, and during the Revolution they had nearly all made new constitutions, under which they had been living for ten or more years.
In fact, our experience of constitution-making and constitution-working previous to 1787 covered a much longer period than our experience since that year. Our modern experience has dealt with larger populations and vaster problems, but it covers a period of less than one hundred and ten years, while the previous experience was of two hundred years, and was more varied, experimental, and elementary.
When Massachusetts sent her delegates, in the year 1787, to frame the National Constitution, she had had over a hundred and fifty years' experience of constitution-tinkering. During that time she had lived under two charters, a constitution, and an interregnum, when she had neither charter nor constitution and was under the direct rule of the Crown. Her first charter was so liberal that she had enjoyed for fifty years what was in effect independence. She elected her own governors, coined her own money, and was not obliged to send her laws to England for approval. Her second charter was just the reverse, and gave her a taste of something very near to despotism. During the Revolution she made for herself a constitution which was rejected by her people, but before the Revolution closed she made another, which was accepted. She had had a double experience of constitution-making during the seven years of the Revolution, and, taken all in all, a very severe and long preparation for her part in the national document of 1787.
Virginia had had very much the same experience and training, and for a longer period of time. Pennsylvania had been living for more than ten years under a constitution which she had made for herself in 1776, — a most bungling instrument, with which the majority of her people were heartily disgusted. Previous to that she had been living under an excellent constitution of her own making for seventy-five years, before which she had lived under several constitutions, or frames, as they were then usually called, none of them successful.
Other colonies had had greater or less experience, and it was certainly all very varied. When we consider that the delegates came to the Convention of 1787 with all this experience in their minds, each with the experience of his own colony and what he had heard of the experience of the other colonies, we begin to feel the truth of my main proposition, — that it is to the colonial period we must look for the immediate and most evident sources of the National Constitution, and that the National Constitution when framed, in 1787, instead of being a contrast to the British Constitution and "struck off at a given time," was, even when judged as a purely American production, more than a hundred years old.
The colonial sources of the Constitution are, first of all, the charters of government, which were framed not by the colonists themselves, but for them by the officers and ministers of the British Crown. It is easy enough to give the details of these. We have them all in Poore's admirable collection. They are very trying to read, because, like other documents of that time, each of them, though many pages long, is supposed to be one sentence from beginning to end. The clerks who draughted them were paid by the line, and their ingeniously involved language almost compels one to believe the assertion in Kid's "Social Evolution" that the modern brain is inferior to the ancient But their immense verbosity conceals usually only a few very simple arrangements of government They were the foundation and beginning of our constitutional experience.
The second source of our experience is comprised in the constitutions, or frames as they were often called, which were made by the colonists themselves, with little or no dictation from the Crown. Some of these, as in Pennsylvania, rested on an authority given by the Crown to the people to make such a government as they could agree upon with their feudal proprietor. The first constitution of Connecticut, however, was made by the people of their own accord, without any outside influence. These native constitutions might naturally be expected to differ very radically from the royal charters. But in matters of government and political forms there was very little difference, and both charters and constitutions seem to have been influenced by the same process of evolution.
The third class of sources is the actual working and experience under these charters and constitutions, and under the governments which sprang up or were established by the Crown when a colony was without either charter or constitution. In this class we find the same evolution at work, and the practical experience under these governments reinforced the ideas developed by the written documents.
The fourth class of sources comprises what I shall call the Revolutionary constitutions, or constitutions of the year 1776. I call them constitutions of 1776 because most of them were made in that year. They were all the result of a resolution of the Continental Congress passed in 1775, calling on each of the commonwealths, that were then still colonies, to abolish their charters, constitutions, or whatever sort of colonial government they had, and adopt new constitutions suited to the movement for independence.
It was a resolution which at the time it was passed was considered of great importance. The people were wavering and hesitating to join the movement for independence because they retained a lingering sentiment for the old order of things, the order under which they had lived and prospered for more than a hundred years, and which had given them pretty much all the experience they possessed of civil rights and government. This sentiment was generally believed to be wrapped up in the old charters and colonial constitutions, and if they could be broken the sentiment, it was said, would lose more than half its strength.
It was certainly in many respects a wise resolution from the point of view of those who passed it. It has not been much noticed by writers on the sources of the Constitution, but it was the indirect source of more constitutional experience to the American people than anything else that can be named. It was obeyed by all the colonies except Connecticut and Rhode Island, whose charter governments were so liberal and gave so much essential independence that they were already substantially American. Connecticut continued to live under her old royal charter down to the year 1818, and Rhode Island down to the year 1842.
Under the inspiration of this resolution the majority of the commonwealths that eleven years afterward made the National Constitution rushed into an active experience in constitution-making in the years 1776 and 1777; and they had an opportunity to test the constitutions thus made for ten years before they were called upon to frame the national document
Of the seventeen constitutions of 1776, eight were put in operation in the year 1776, three in 1777, and one in 1778. Massachusetts framed a constitution in 1778 which was rejected by her people, and another in 1779 which was adopted March 2, 1780. New Hampshire, which had adopted a constitution in 1776, framed another in 1779 which was rejected, and another in 1784 which was adopted. But even in the instances of Massachusetts and New Hampshire, where the experience was prolonged and difficult, the constitutions had been in actual working for several years before the assembling of the National Convention of 1787. Vermont adopted a new constitution in 1786, the year before the assembling of the Convention, but it differed very slightly from her constitution of 1777, which was a copy of the Pennsylvania constitution of 1776.
When we read all these constitutions of 1776 together, in the light of our present knowledge, we see at once that they bear a most curious but immature resemblance to the National Constitution. They are full of blunders, untried experiments, well-tried experiments, individual suggestions good and bad, old colonial traditions and experience, strange remnants of aristocratic feeling, and all the natural characteristics of apprentices free for the first time to slash about at will with their master's tools and materials. And the most striking part of all is that when we read them in chronological order we find them developing step by step, and that those which took longest in making, like the constitution of Massachusetts, most nearly resemble the National Constitution.
CHAPTER II.
THE COLONIAL CHARTERS AND CONSTITUTIONS. (1584 to 1732.)
THESE old documents, when carefully studied in chronological order, show a steady development towards the forms of the National Constitution of 1787. The earliest of them was Sir Walter Raleigh's charter of 1584. This charter was the first step in English colonization in America, and, in a certain sense, the first American written constitution. It authorizes Sir Walter to discover and settle heathen lands, without mentioning any particular continent or part of the world. But it was intended to encourage colonization in North America, and the five unsuccessful voyages made under it were all directed to that continent..
Sir Walter and his heirs and assigns are to be the absolute owners of any lands they settle. He is to have "full power and authority to correct, punish, pardon, govern, and rule" in every way for six years the people who shall come to him or who shall live within two hundred leagues of him. His absolute power during those six years is given in the fullest manner, and the only exceptions to it are that his laws must conform "as near as conveniently may be" to the laws of England, and if he robs any British subjects or the subjects of any prince at peace with Great Britain he must make restitution, under penalty of being declared out of the allegiance and protection of his country and "free for all princes and others to pursue with hostility."
The first notion, therefore, which the English had of colonization and government in America was to give the absolute ownership of the land to a single individual, and let him govern it with absolute power for six years. The object was evidently by high reward to encourage some daring spirit to attempt the enterprise, and if he should be successful for six years a more orderly government of the colony could be provided.
The more orderly government appears in the next document, known as the first charter of Virginia, granted in the year 1606. Sir Walter's efforts under his charter of 1584 had been wholly unsuccessful, and no settlement was established. But he gave the name Virginia to the whole country between the present States of Maine and Georgia, so that the next charter could at least be less vague than his had been. We find it, indeed, describing with considerable exactness the country it granted as extending from latitude 34° N. to latitude 45° N. This huge tract was to be divided between two colonies, the first of which was to settle somewhere between Georgia and Pennsylvania and the second between Pennsylvania and Maine.
The absolutism given to a single proprietor in Sir Walter's charter is abandoned in this charter, and in place of it the same absolute power is divided between the king and a council. The government is to consist of a council of thirteen persons in London and a council of the same number in each of the two colonies.
Each council in the colonies was to govern its people according to such laws and instructions as the Crown should give, and these instructions were to provide for the appointing and removal of members of each council. But to each council was distinctly given the right to defend its colony by war on sea and land and establish a coin to pass current in trade. The London council was to have a general oversight of both the colonies, but its powers were of the vaguest kind. This charter was, however, a great advance on Sir Walter's. The law-making power was taken from the single proprietor and reserved to the king, and the administration of the laws was given to a more or less numerous council.
The power to make war and coin money was of a decidedly political nature, and shows a conscious shaping of the beginnings of a commonwealth. But the charter did not resemble any part of the British Constitution of that period. So far as it resembles anything it is more like the arrangement of the old English trading corporations. They were very apt to have the governing power in the hands of a set of individuals, called a council or some such name. Afterwards there was a head, called president or governor, with a council to assist him, and in time the corporation government by president, board of directors, and stockholders was developed as we have it to-day.
Thus, the charter of the famous Grocers' Company, granted in 1429, places the whole power and government in three or four individuals called wardens. They are to govern; and apparently, so far as the charter speaks, the members — or stockholders, as we should now call them — have no vote, and there is no head or president. The charter of the Merchant Adventurers, granted in 1505, shows a development by allowing the adventurers to meet and elect a governor or governors and also "four-and-twenty assistants to the said governor or governors." This term "assistants" was afterwards, as we shall see, used in the Massachusetts charter of 1629, showing very clearly how our American forms of government originated in the trading charters.* The first Virginia charter is evidently framed on some such model. Its draughtsmen naturally followed some of the forms to which they were accustomed in organizing ordinary enterprises of business, and, as this one was to found a settlement in a new country, they threw in the political rights to coin money and to defend the settlement by waging war. They were soon to become convinced that a full-fledged corporation was the best form of government for establishing a colony.
* An interesting account of some of these old companies can now be found in Gawston and Keane's "Early Chartered Companies." They were all, in their forms of government, very much like the early charters of the colonies in America. They were the beginning of the great English colonial system, and were for the encouragement of trade, exploration, and settlement in foreign countries. They were necessary as the most convenient method of concentrating capital and energy, because private individuals could not bear the great expense of contending with the pirates, who had to be fought with heavy armaments or bought off with expensive presents. These necessities of warfare first suggested the giving of governmental powers, which were rather novel functions for traders. The chronological order of the creation of these companies is significant: Merchant Adventurers, 1505; Russia Company (for trade towards Russia), 1554; Eastland Company (also for trade to Russia), 1579; Turkey Company (for trade to the Mediterranean), 1581; Marocco Company, 1585; First Guinea Company, 1588; East India Company, 1599; Guiana Company, 1609; Bermuda Company, 1612; Second Guinea Company, 1631; China Company, 1635; Third Guinea Company, 1662; Canary Company, 1665; Hudson's Bay Company, 1670; Fourth Guinea Company, 1672.
Three years after, in 1609, another charter was issued for Virginia, which professes to be an enlargement and improvement on the first one. It is less vague. Experience had been acquired, and more details and more definite arrangements could be ventured upon. The striking part is that it creates an out-and-out corporation modelled on the trading companies of the time, with the usual expressions giving a common seal, perpetual succession, and the right to hold real estate and to implead and be impleaded.
A settlement had been effected in 1607, on the James River, within the territory of the first colony; but nothing had been accomplished within the domain of the second colony. The second colony was therefore abandoned, and the first colony incorporated under the name of "The Treasurer and Company of Adventurers and Planters of the City of London for the First Colony in Virginia." A trading company was the natural form for the enterprise to take, for these rather reckless adventurers who were going to Virginia had no political project in their minds, and were not bent on carrying out any particular political theory. They were in search of gold or wealth in any form they could find it, and for that purpose the king was allowing them to enter on a tract of land in his wilderness domain.
Their quest was a business one; and so they were incorporated as a business company, with one or two rough provisions added to enable them to live together in the wilderness. They were a trading company which might also have to fight savages or pirates or the king's enemies, and might also have to control and punish unruly men among their own number. They were very much like the Hudson's Bay Company and the East India Company, whose charters show this same peculiarity of an ordinary trading charter changed slightly so as to enable its members to contend with wild nature and wild men.
The first charter of Virginia named no officer as head of the undertaking. But now we have the treasurer as head, and the charter of incorporation goes on to provide that there shall be two councils as in the former charter, one resident in England and the other resident in the colony. The council in England is to appoint a governor and other officers and make laws for the colony, and the council and treasurer are to be elected by the members of the company. The council, treasurer, and members of the company collectively are given a sort of general police power to correct, punish, and pardon offences, and the governor is given the right to make use of martial law when occasion requires it.
Here we have some decided governmental powers worked out under the forms of a trading corporation. A definite governor or executive is provided for the first time; and the pardoning power appears also for the first time given to the collective legislative body of the whole company as well as to the governor and other officials, and not to the governor alone, as in later developments. The right of the company to elect the treasurer and council is also a considerable advance; and the absolutism of the two previous charters has disappeared.
In 1611-12 another charter added a further development, and gave to the treasurer and members of the company the right to hold general courts or meetings, and to make laws, appoint officers, arrange the manner of government, and elect persons to the council. Here we have the power of making laws and appointing officers taken away from the council and given to the whole body of the members of the company, — a definite move towards more popular government within the forms of a trading corporation. The council is relegated to the position of a sort of executive body to manage the affairs of the company from day to day, and we shall soon see it become the governor's council. There is also a provision allowing the company to admit as members aliens, or persons not liege subjects of the British Crown, which is evidently a move towards the right possessed by all political governments to naturalize foreigners.
Thus far the American form of government as developed out of a corporation seems to be a council and head of the company called treasurer, a governor, and the members of the company meeting in a body to legislate. But under the condition of affairs in Virginia the governor became more and more of an important person, and the colony was soon ruled by governors with a strong and even violent hand, — a method which was doubtless well suited to the restless and unruly spirits of the adventurers. One of the governors controlled them by martial law, which the charter allowed to be used in case of necessity.
Meantime there was great contention in England among the members of the company as to what was the proper form of government for the colony. In 1619, under the powers they had to make laws, they adopted a new political organization, evidently the result of experience and thought. The governor was to have a council to assist him as the executive of the colony, and the members of the company in the colony were to elect representatives to a little legislative assembly called the "house of burgesses." Thus the right of all the members to meet and enact laws, having become obviously inconvenient, was transferred to delegates.
Here we have the germ of all our American governments and of the National Constitution. It is simply a slight extension of the forms of the old trading corporation to suit the conditions in Virginia. The Massachusetts charter of 1629, which was modelled on the Virginia charters and gave the law-making power to the whole body of the freemen or members of the company, was developed by custom into the same form that prevailed in Virginia. The members of the company found it inconvenient to meet all together, and they transferred their law-making power to a smaller body of delegates.
This simple type of governor and council for the executive and a single house of legislature was not copied from the British form of government, but was developed by circumstances and necessities from the trading company. It remained the fundamental form of government in the colonies for more than a hundred years, constantly putting forth branches and growths which resembled nothing in England, but resembled very strongly what afterwards became parts of our National Constitution. We shall follow the details of all these growths and gradually see the governor's council expand into the Senate of the United States.
The Virginia charters were dissolved in 1623, and from that time until the Revolution the colony had no charter or written constitution. The form of government, however, of governor's council and single house of legislature survived, and showed the same kind of development that we shall find in the other colonies. The governor acquired the veto power on legislation, the right to pardon criminals, the right to appoint to office, and the command of the militia. His council showed a decided tendency to develop into a second or upper house of the legislature. In 1680 they ceased to sit with the burgesses, and, as time went on, acquired more and more legislative functions.
There was the same confusion of the departments of government as we shall notice in the other colonies. The governor was not only an executive officer, but a judicial officer as well, and acted as chancellor and chief justice. He also had the power, which we shall find in some other colonies, of adjourning the legislature at his pleasure. The constitution of Virginia became one of custom and laws passed from time to time, the result of what had been done under the charters, of what had been done without them, of what had been done by the Crown and the royal governors, and of what the popular party by resistance could win for itself.
"The Agreement between the Settlers at New Plymouth" might be our next document, as it was made in 1620. But, although much sentimental praise has been lavished upon it by some writers, it is not a charter, nor, properly, a constitution, and still less a frame of government. It was drawn up on the "Mayflower" by the Pilgrim Fathers before they landed on the coast of Massachusetts, and is only about a dozen or fifteen lines of print to the effect that its signers solemnly and mutually combine themselves into a body politic to be governed by laws afterwards to be prepared. There are no details, there is no frame of government of any sort, nor is an officer of any kind named. It is merely such a simple agreement as any ship-load of people of any race about to land on a wild coast might prepare. It is an agreement to make a government in the future, rather than the government itself.
We shall pass it, therefore, and take up the charter of New England, which was granted in the same year, — 1620. This document reveals a curious reaction; in fact, a return to the absolutism of the Virginia charter of 1606. A council of forty persons is created, which is to be a corporation and to continue its existence by elections among its own members. It is to elect one of its members to be president and preside over its meetings, and has in every respect the fullest power to appoint the governor and all other officers and to make all laws which shall be thought necessary.
The reason for this return to absolutism may have been that New England was at that time unsettled and all attempts to establish a permanent colony there had failed. The climate was cold and the country barren and unattractive. A council with full power might be able to encourage the beginnings of settlements, for they could work in their own way without interference.
But still, even amidst this absolutism, there are signs of advance. The corporation is called a "body politicque and corporate," showing a consciousness that these corporations were becoming something more than mere trading companies. A new kind of corporation was being developed, which was neither a private nor a municipal corporation, but a political corporation. The grant of judicial power is also more liberal than any that has appeared hitherto. Instead of the cautious permission of the Virginia charter of 1611-12, which allowed the council merely to punish crimes, we find the New England council given full judicial authority in civil as well as in criminal cases.
When they came to making laws and a government for New England under their absolute authority the council were evidently influenced by the advance free government had already made in Virginia. Two years after they received their charter they published a pamphlet entitled "A Brief Relation of the Discovery and Plantation of New England," which was intended to encourage settlers and described the sort of government the council had decided to adopt. The government was modelled on the Virginia type, and consisted of a governor and council and a general assembly of deputies elected by the counties, baronies, and hundreds into which the county was divided. A slight tendency to advance is shown in the provision that there should be a treasurer for finance, a marshal for arms and war, a master of ordnance for ammunition and artillery, and an admiral for all marine affairs. The president and council in England were to order the assembling of the general assembly and "give life to the laws," which probably meant a veto power.
The next charter in order is that of Massachusetts, granted in 1629. It also has the characteristics of a corporation, and, like the last one, calls the company a body "corporate and politique." In the sort of government created by it the Virginia charter of 1611-12 is followed quite closely, with a slight development There were to be a governor, a deputy governor, and eighteen assistants, or governor's council, all — including the governor and deputy — to be elected by the freemen or members of the company, who, together with these officers whom they elected, were to make the laws. This is nothing more than an ordinary trading-company government, in many respects like those of modern times. The freemen — that is to say, those that were made free of the company, as the expression was in those times — were the members or stockholders, as we should now call them. They elected the assistants, who corresponded to the modern board of directors or trustees, and the governor corresponded to the modern president.
Very quickly, however, the freemen, finding it inconvenient to meet in a body to transact the company's business, elected delegates to represent them, and thus, as in Virginia, a legislature was formed, — the outgrowth simply of an inconvenience in administering the powers of a trading company. Again, we have, as in Virginia, the typical colonial government, — governor, governor's council, and a single house of legislature.
The charter had given the power of making laws to the governor, assistants, and all the freemen assembled together. This was a confusion of executive and legislative functions, natural and proper enough perhaps in a trading company. When the legislature was developed out of the inconvenience of the freemen all meeting together, the same confusion continued. The legislature, the assistants, and the governor sat together to make laws; and after a time the assistants sat as a separate body.
This mingling of the distinct departments of government was common in all the colonies, and was the natural result of a development from trading companies. It continued all through the colonial period, and at times grew worse, for the judicial function was often added to the executive and sometimes to the legislative. Its unsoundness and inconvenience were at last realized, and in the constitutions of 1776 efforts were made to correct it Several of those constitutions announce with great emphasis the principle that the legislative, judicial, and executive departments must never be confused and never exercised by the same persons. In the National Constitution no such principle is stated, because it had become fixed and settled, and it was necessary only to act upon it The national document certainly made all those departments entirely distinct, and the evolution on this point was complete.
In the Massachusetts charter, as in the Virginia charter, there is no copying of the forms of the British government There is no double legislature, no House of Lords and House of Commons to act as checks on each other. Some would say that the assistants, or governor's council, were like the English Privy Council of the king. But the king's Privy Council did not sit with the English House of Commons, and was not elected by the people, as the assistants were. The assistants were an executive, legislative, and judicial body, acting as magistrates, laying down rules and regulations in the absence of a meeting of the freemen or their delegates, and giving advice to the governor, — performing, in short, very much the same functions that a corporation board of directors would now perform under the same circumstances.
The persons who influenced the draughting of the Massachusetts charter were, first of all, the Puritans, who wanted it, and, secondly, the officers of the Crown, whose duty was merely to see that the rights of the British government were protected. The Crown officers had no wish to create a political government in the American wilderness, and least of all to create it for such persons as the Puritans, who had already made themselves so troublesome by political agitation. It would be better to limit such reckless and fanatical men within the form of a trading charter rather than give them a government which in either model or dignity could be compared to that of Great Britain. The Puritans, on the other hand, would have been the last persons to want a government on such a model; for they were hostile to the British government, and had little or no sympathy for its monarchical and aristocratic forms.
They succeeded admirably in getting all they wanted within the forms of a corporation. There was no provision, as in subsequent charters, requiring their laws to be submitted to the Crown for approval. They could elect their governor and all other officers. In fact, the charter proved to be so liberal that the Puritans set up under it what was in effect almost an independent state.
We must next dispose of some charters which were of a peculiar character and show but little development. The first is that of Maryland, granted in 1632. It was a proprietary grant, or conveyance of a great tract of land, making Lord Baltimore the feudal lord and owner; and in these proprietary grants the Crown usually gave its favorite the privilege of creating any sort of government he and his colonists could agree upon. This was a considerable advance on the absolutism of the proprietary grant to Sir Walter Raleigh, who could govern without consulting his colonists at all.
Lord Baltimore was allowed to make laws "with the advice and consent" of the freemen, or a majority of them or their delegates. He was also to have the privilege of appointing judges and various other officers, and of pardoning criminals. These powers of appointing and pardoning were afterwards a common attribute of colonial governors, and show a slight development. There was also some advancement shown in the power given Lord Baltimore to establish courts of law for both criminal and civil cases. The previous charters had given only criminal jurisdiction.
There was a curious provision allowing the proprietor to make laws without the consent of the freemen in any sudden emergency when they could not be called together in time. This privilege, which was also given to William Penn in the Pennsylvania charter, and to the proprietors of the Carolina charters of 1663 and 1665, was seldom if ever exercised. It was so close to despotism that the mere mention of it would arouse the indignation of the people. Penn threatened to use it, or, rather, reminded the people that he could use it, and seriously injured his popularity.
We may also at this point dismiss the Pennsylvania charter of 1681, which, so far as a form of government was concerned, was the same as Maryland's. The two proprietary charters of the Carolinas — one in 1663 and the other in 1665 — and the grant of Maine in 1639 may be dismissed in the same way. They gave the proprietor the same rights as the Maryland charter. The two proprietary grants of New Hampshire — one in 1629 and the other in 1635 — were very bald and crude, simply giving John Mason the right to make a government, and if the people thought it was wrong they could appeal to the council of the New England Company that made the grant. The grants to the Duke of York, one in 1664 and the other in 1674, were mere gifts of absolute power, like Sir Walter Raleigh's charter of 1584.
The fundamental orders of Connecticut of 1638 come next in order after the Maryland charter of 1632. These orders, as they are called, form a constitution which is exceedingly interesting, because it is the first constitution made upon American soil without any interference or influence from the British Crown. The Connecticut people who made it had migrated from the Massachusetts colony and settled themselves about the site of the present town of Hartford. They were outside of the jurisdiction of Massachusetts. In fact, they were not within the limits of any colony, and had no title except a title of mere occupancy to the land on which they settled. They drew up the fundamental orders by mutual agreement and understanding among themselves, and we should naturally expect it to be a document somewhat resembling the Massachusetts government and at the same time without any of the trammels of corporation forms or Crown influence.
It is curiously worded, and begins wrong end foremost The duties of the legislature are described before we are told that there is to be a legislature at all. But as we read on it seems that the people of the towns were to send deputies to an assembly which was called the general court This general court had two stated meetings a year, — one in April, called the court of election, at which a governor and other public officers were to be chosen, and another in September, for passing laws and transacting general business.
The magistrates were apparently a governor's council, like the assistants in Massachusetts. In fact, the Massachusetts assistants were often spoken of as magistrates. The governor was to summon the general court a month before the time of the meeting, and, "if the governor and the greater part of the magistrates see cause upon any special occasion to call a general court, they may give order to the secretary so to do within fourteen days' warning." This power to call the legislature together in an emergency was afterwards given to the president in the National Constitution.
When the general court met it was to be composed of the deputies and also the governor and at least four of the magistrates. There were to be six magistrates elected by the whole body of the freemen, and they were given judicial power. But apparently the governor was to be elected by the general court.
That this instrument was in the main a copy of the government of Massachusetts as it had developed under the charter is quite evident. We have the governor and his council of assistants or magistrates, a house of deputies elected by the people, and governor, magistrates, and deputies all sit together as a single-branch legislature. The only difference is that the governor seems to be elected by the general court instead of by the people, and this is easily accounted for when we find that for a short time in Massachusetts the right to elect the governor was surrendered by the freemen.
Even when left to themselves, therefore, and uninfluenced by the Crown, the colonists seem to have followed the forms already in existence as developed from the trading-company charters.
Only one or two other points in the Connecticut fundamentals deserve mention. The magistrates are distinctly given the power to sit as a court or as separate courts of law. They were to be guided by the laws as established from time to time, and, when there were no laws, by the word of God, and this was a familiar custom in Massachusetts. The Connecticut governor was to preside over the general court, and could not adjourn it without its consent. But the most striking advance is a clause giving the general court the power of impeaching public officers, and this is the first appearance of the power of impeachment.
In 1643 the inhabitants of Rhode Island were given a patent which allowed them to rule themselves by such form of government as the majority should find suitable to their condition. As this patent contains no special form of government and is merely a license to make any government that shall be suitable to the majority, it need not be discussed further than to say that it was an obvious step towards referring all political power to the people. The government established under it was modelled on those that already existed in Massachusetts and Virginia, and consisted of a governor, governor's council, and assembly elected by the people.
Our next charter belongs to Connecticut, and may be considered at the same time with the charter of Rhode Island, for the two were only a year apart, being granted respectively in 1662 and 1663, and are almost precisely alike. They are also like the Massachusetts charter, and a slight advance upon it.
The Connecticut people had come from Massachusetts, and when they sent Winthrop to England as their agent to obtain a charter he naturally followed the Massachusetts model, and the Crown officers seem to have had no objection. It was so liberal in its terms that it always has been somewhat of a wonder how it was obtained, and stories have been told of the influence exercised by Winthrop with a ring which his father had received from Charles I. At any rate, Charles II. and his ministers seem to have been in an easy mood, and not so stringent in their ideas of colonial rule as they afterwards became. The charter suited the Connecticut people so well that they refused to abolish or alter it in the Revolution, and lived under it until the year 1818. It may therefore be regarded as very American and in many respects a native product.
It is very general in its provisions for government, is still in the corporation form, and calls the company it creates a body "corporate and politick." The freemen were to elect the governor, deputy governor, and twelve assistants; and the assistants were, of course, intended to be a governor's council. So far it is just like the charter of Massachusetts.
The Massachusetts charter, it will be remembered, provided that all the members of the company were to meet together in a body to legislate, and this, being found inconvenient, was changed by custom and a house of delegates created. The Connecticut charter, however, creates this house of delegates at once. In other words, it copied the Massachusetts form of government as it had developed up to the year 1662, and so far was an advance on the forms of the old trading corporations. It also advanced by giving the name general assembly to the governor, assistants, and house of deputies, when they all met together to enact laws, — a name which became very common, and is still retained in some of our States.
The general assembly was given the power to punish crimes and offences, and also the power to pardon. In the colonial governments the pardoning power was sometimes given to the executive department and sometimes to the legislative, until, as we near the National Constitution, it becomes a fixed prerogative of the executive.
Besides the general power to make laws, this general assembly was distinctly given the right to create and organize general courts of justice, both civil and criminal. This right had been given for the first time to Lord Baltimore in the Maryland charter of 1632. One might suppose that it would be implied in the power to make laws. But evidently there was a doubt on this subject, and the existence of this doubt shows how government was developing out of the forms of the trading corporations.
To create courts which shall enforce rules of conduct by seizing the property of citizens in some cases, and seizing their persons in other cases and condemning them to imprisonment or death, is a very important power, and one of high prerogative. It is not, and never has been, the usual incident of a business corporation. It might possibly be implied as part of the necessary powers of a corporation which was to undertake the unusual task of settling and planting a wilderness. But evidently it was thought better, as these colonial planting and trading corporations became more and more like real governments, to give somebody in them the distinct and express power of creating courts of justice. The failure to make this matter clear in the Pennsylvania constitution of 1701 afterwards led to a very bitter dispute whether the governor or the assembly had the right to institute courts.
As the Rhode Island charter was granted the year after that of Connecticut and contains the same provisions of government, it is not necessary to enlarge on it in detail. It was obtained by a Baptist minister, Rev. John Clarke, who, like Winthrop of Connecticut, went over to England as agent. He naturally followed the easiest course, and obtained a charter like the one just granted to Connecticut, which at that time, in New England, was generally believed to be the best instrument of government.
Thus we have in the year 1663 three specimens of the most advanced form of American government. It is allowable to call them American, and not English, because the Massachusetts government was to a large extent a growth on the soil, and had added to itself the house of delegates, which was not provided for in the charter as drawn in England. The other two had copied this development and added to it an advance of their own in distinctly saying that the general assembly should have the power to create courts of justice. Moreover, it is to be observed that, as these two were obtained by agents who went from the colonies to England, they may be said to have been draughted by American influence, the result of American experience, and they were not the mere theorizing of Crown officers or of persons who had never lived in America.
It should be noticed that in none of these governments was the legislature composed of an upper and a lower house acting as a check on each other. The legislature was to consist principally of representatives elected by the people. The governor's assistants, or council, were to sit with them, not as a separate body to act as a check, but as a part of them. There were as yet no veto power and no pardoning power in the governor, and no detailed description of his relation to the legislature or of the legislature's relation to him. There was not the slightest resemblance to the British government of King, Commons, and House of Lords. All I see, and all I think any one can see, is an English business corporation altered a little to suit unusual circumstances, — the circumstances of planting and trade instead of trade alone, — and by experience in those circumstances somewhat developed and enlarged in the direction of a true political government.
Two or three years after these charters of Connecticut and Rhode Island another frame of government was prepared for the colonies, and this was the "Concessions and Agreements of the Proprietors of East Jersey," of 1665. This instrument was not a royal charter, and in the making of it the Crown officers had no influence. It was prepared by the proprietors of the province according to their own ideas, and it is interesting to observe that it accepts the form of government as developed in Virginia and New England under the royal charters, and adds some developments and improvements.
There is to be a governor, with a council of from six to twelve, "with whose advice and consent" he is to govern; a house of deputies, elected by the people; and governor, council, and deputies are to sit together in making laws, and be called the general assembly; and the assembly is to have the right to establish courts of law. So far the New England type is strictly followed. Then comes an advance, and some details are added, showing a conscious framing of more complete government.
The assembly is told that it may appoint its own time of meeting and adjourn when it pleases. This same power of adjourning at pleasure had been given to the assembly by the Fundamental Orders of Connecticut in 1638, but it was so much of an advance that it was not followed in the Connecticut charter of 1662 or in the Rhode Island charter of 1663. Even in these Concessions of East Jersey of 1665 it was found to be ahead of time, and had to be set back.
Other increased details of power follow. The assembly was to decide what should be its quorum, levy taxes, lay out ports and towns, divide the country into counties and districts, naturalize foreigners, establish forts and arm them, and organize the militia. The governor and his council were to appoint the judges of the courts and see that they and all other officers did their duty; also to appoint military officers, to command the militia, and to reprieve criminals until the case could be heard by the proprietors, with whom rested the pardoning power.
Here we have a large and detailed development of both legislative and executive authority, taking American government a long way out of the old forms of trading corporations; and we also find that the proprietors retained the privilege of rejecting all bills passed by the general assembly, which was a veto power like that of Lord Baltimore in the Maryland charter of 1632.
This somewhat excessive development was the result of the constitution being framed not by the people who were to live under it or by regularly constituted officers of the Crown, but by a few men of good education and advanced ideas, who were free to theorize a little and carry out favorite principles. Whenever men of this sort draughted an American constitution we usually find an abnormal development, in some cases so abnormal as to produce reaction.
In the present instance of the constitution of East Jersey an amendment was made in 1672 taking away from the assembly the right to control its own adjournments and giving that control to the governor and his council. But two years afterwards, in 1674, the development went on, and we have an instance of an attempt to create a double-branch legislature. The governor and council were no longer to sit with and vote with the deputies, but to sit by themselves and have a veto on everything passed by the deputies.
This constitution of East Jersey and the constitution of West Jersey, to be noticed hereafter, were abrogated in 1702, when both provinces were surrendered to the Crown. After that the Jerseys were ruled as one colony by governors appointed by the king, without charter or constitution, the people always protesting that they still retained all their rights under the old proprietary Concessions.
About four years after the "Concessions and Agreements of the Proprietors of East Jersey" another charter appears, which seems to have been almost exclusively the work of one man. This was the famous constitution of John Locke, in 1669. It was prepared for the government of the Carolinas and only partially put in operation. It was never successful, and was abrogated in 1693.
It was not made by the people themselves or by practical men who were politicians or lawyers, but by a philosopher who was idealizing. Nevertheless, it is valuable as showing development, for Locke, although a philosopher, was also a human being, influenced by the opinion of his time, and he had read all the charters and constitutions of his day and knew the problems to be solved. In fact, he foresaw one of the problems of the future in a very remarkable way. He emancipated himself completely from the forms of a trading corporation and attempted to create an out-and-out American political government.
He began in the most scientific manner by dividing the province into counties, and the counties into seigniories, baronies, and precincts, and the precincts into colonies. The head, or governor, was to be called the palatine. There were to be lords proprietors, landgraves, and caziques; also admirals, chamberlains, chancellors, high stewards, chief justices, and treasurers. No lawyers were to be allowed, nor could any one plead for a fee. Not satisfied with making the constitution and laws secure by the absence of lawyers, he provided that there should be no comments or expositions of any kind on the constitution or statutes, so that they might always remain clear and easy to understand. The constitution was never to be altered in any way, and, that it might not be gradually and imperceptibly altered by laws, all laws were to become inoperative one hundred years after their passage.
But in the midst of all these extraordinary provisions we begin to see some light when we find him providing for a registry of deeds and mortgages in each precinct. A similar registry had been provided for in the Concessions of East Jersey. He also provided for the collection of vital statistics, and a little closer attention reveals a double-branch legislature. His grand council was a separate legislative body, whose function was to propose measures for the lower house, or parliament, as it was called, and nothing could be proposed in this parliament unless it had passed the grand council. This was the first appearance in American written constitutions of a double-branch legislature, and it was followed in 1774 in the amendment to the Concessions of East Jersey.
The plan of giving the upper house the sole power of originating legislation was some years afterwards introduced into Pennsylvania by William Penn. But it was very unpopular, subversive of the ordinary political rights of Englishmen, and finally defeated by the people.
Besides the attempt to form a double legislature, this constitution of Locke gives an elaborate sort of veto on legislation to the palatine and his court and some of the lords proprietors. Leaving out what was the result of Locke's individual and peculiar views, this constitution adds something to the development reached in the document last considered of East Jersey, while in the main it follows it quite closely.
But Locke foresaw in a curious way that the great difficulty with these written constitutions would be in devising some body or department which should prevent infringements and prevent the passage of unconstitutional laws. This problem was afterwards attempted to be solved in some of the constitutions of 1776 by creating a board of censors, whose duty it should be to prevent infringements and expose them when committed. Since then the Supreme Court of the United States and the courts of last resort in each State have become the guardians of constitutional integrity. But the only method Locke could think of besides limiting the life of all laws to a hundred years was to intervene a delay and reconsideration between the passage of a suspected law by the parliament and its approval by the palatine. His provision on this point is so curious that it is worth quoting in full. The suspected act could be protested for unconstitutionality:
"And in such case, after full and free debate, the several estates shall retire into four separate chambers, — the palatine and proprietors into one, the landgraves into another, the caziques into another, and those chosen by the precincts into a fourth, — and if the major part of any of the four estates shall vote that the law is not agreeable to this establishment and these fundamental constitutions of the government, then it shall pass no farther, but be as if it had never been proposed."
Next after Locke's attempt at constitution-making comes the "Concessions and Agreements of the Proprietors of West Jersey," which appeared in 1677. It begins by appointing commissioners who are to govern the colony by instructions received from the proprietors until other commissioners are elected by the inhabitants, and these commissioners elected by the inhabitants are to govern until a general assembly is elected. Then comes "The Charter or Fundamental Laws Agreed Upon."
It is quite likely that the draughtsmen of these fundamental laws had been reading Locke's constitution, for they begin by trying to invent a method of preventing unconstitutional legislation. The constitution must not be violated by the assembly, they say, and any assemblyman moving anything unconstitutional shall, on proof of seven eye-witnesses, be proceeded against as a traitor. Then follow a few provisions about trial by jury which at the time of the Revolution would have been included under the head of what was usually called a "Bill of Rights." These bills of rights were generally affixed, in some form or other, to all the constitutions of 1776, and this constitution of West Jersey shows the beginning of them in American governmental documents.
The remaining provisions for West Jersey are, however, very meagre. A registry of deeds is provided, as in Locke's constitution and in the Concessions of East Jersey. The assembly may fix its own quorum, adjourn as it pleases, erect courts of law, appoint judges, and lay out towns and counties. No governor is provided, but the assembly is to elect ten commissioners, who are to be the executive. Certainly this was a very crude instrument, — of slight advance, and in some respects a reaction. The same fate befell it as befell the Concessions of East Jersey. It was surrendered and abrogated when the two provinces became one colony under direct royal government in 1702.
New Hampshire's charter comes next, and this also shows only a slight development. It was, however, not properly a charter, but a mere royal commission granted in 1680 for the purpose of governing the province during the king's pleasure. At first New Hampshire had been a proprietary colony under John Mason; but the proprietorship was not successful, and the settlers sought the protection of Massachusetts in 1641, and remained under her tutelage until 1675.
The royal commission of 1680, though not a charter, is professedly a method of government, and shows in a rough way some of the general ideas that were in all the colonial governments. The president and his council were to be the executive of the province, control the militia, encourage good living and virtue, and also act as a court of justice, — a very gross confusion of the departments. There was to be a house of representatives to make the laws, and the president and council had an absolute veto power.
Here it is evident we have the Massachusetts, Connecticut, and Rhode Island charters over again with a slight development. The governor or president, with his council, is given the veto power, which had not before been given in New England.
The president and council are also given the power of commanding the militia. This power was not distinctly given in the Massachusetts charter, or in either of the other two New England charters which were modelled on it, though, like the power to create courts of law, it might doubtless have been implied. But now we find it, as in the East Jersey Concession, distinctly given to a definite department as the power to create courts was, as already shown, distinctly given. The addition of these two powers, which also appear in a crude way in the Jersey constitutions, shows a gradual working out of the details of a regular government In subsequent frames of government we find them given with more or less detail all the way down to the National Constitution, where they appear in their most mature form.
But the most interesting part of the New Hampshire commission is a clause directing the president to recommend to the general assembly such acts, laws, and ordinances as may tend to establish the people in obedience to the king's authority, preserve due peace and good government, protect them from their enemies, and enable them to raise taxes for the support of government. This was certainly something in the nature of a president's message, an idea afterwards worked out in the New York constitution of 1777 and adopted in the National Constitution.
Our next document, the Pennsylvania frame of 1682-83, is more mature than the commission for New Hampshire. It preserves the forms as developed out of the trading charters of Virginia and New England, and adds to them some striking developments. It is especially worthy of notice because it is the second advanced frame of government that was made exclusively on American soil. The Connecticut Fundamental Orders of 1638 is the first document of this sort, as already shown, but it merely copied the Massachusetts form, with a slight advance upon it. The Pennsylvania frame, as being more fully developed, is more significant and interesting. It was made by William Penn and his colonists under that clause in the grant to Penn which allowed him to make laws "by and with the advice, assent, and approbation of the freemen." The clause did not tell him that he and the freemen might make a constitution; it simply said laws; and it shows the instincts of the race that Penn and his people inferred that under this they must first of all make an organic law, a fundamental order, or, more briefly, a constitution.
There was no royal influence affecting the making of this constitution. No officer of the Crown was present, or had a right to be present. Both Penn and his people were standing on the soil of Pennsylvania, and could do as they pleased. That, under the circumstances, they framed a government which followed the line of development in other colonies, and advanced on it a little, shows that the royal charters heretofore discussed were not entirely the result of mere Crown influence, but were largely what the colonists themselves desired and had suggested.
The constitution begins with a preamble on the nature of government which has been generally supposed to contain Penn's own ideas on the subject Government, he said, was of divine origin and a part of religion. There were many theories of it current; but the actual practice was a different and also a very difficult matter, because the government must be suited to its people and locality. This was certainly very Saxon; and then he adds a sentence which has been often quoted:
"Any government is free to the people under it (whatever be the frame) where the laws rule and the people are a party to those laws, and more than this is tyranny, oligarchy, or confusion."
Governments, he went on, depended on men rather than men on governments; and an ill-framed government in good hands might be quite successful. After all, the great end was "to support power in reverence with the people, and to secure the people from the abuse of power."
All this was much better theorizing than anything Locke had said in his constitution. Penn was one of the most accomplished men of his time, and, though not a metaphysician, was as competent as Locke to draw up an ideal political dream. But he started on the established forms, and, while he made some important developments, kept well within legitimate lines and swerved comparatively little from the normal.
As we read along in his constitution we find a governor, a governor's council, and an assembly of the people, just as in the constitutions developed in New England and East Jersey. The people were to elect the council, as in the New England charters, and it is called the provincial council.
The variations on the New England type were, first of all, that the council was to be very large and contain seventy-two members. In the other colonies the assistants or council were seldom more than ten or twenty in number. This enlargement of the council shows at once a tendency to develop it into an upper house of the legislature, and this is confirmed when we find that the council is to originate all legislation, and that the assembly is merely to accept or reject the proposals of the council. In this idea of developing the council into an upper legislative house of such importance that the lower house would be completely dwarfed and insignificant, Penn seems to have been influenced by Locke's constitution.
It may be added that this sudden attempt to develop a second house and develop it excessively was very much in advance of the time. Not only was Penn's whole arrangement in this respect changed and the legislative department put back in its normal colonial state, but Pennsylvania continued to have a single-branch legislature until long after the Revolution.
In developing the council so excessively Penn naturally gave to it the power to create courts of law, which in the other governments was usually given to the general assembly. He also gave to it the power to enter judgments on impeachments, — that is to say, the right to try impeachments, — which were to be originated and prosecuted by the assembly, or lower house. Previously the right to remove officials had been given in a general way to the general assembly by the Fundamental Orders of Connecticut of 1638, the charter of Connecticut of 1662, and the charter of Rhode Island of 1663, and apparently the general assembly was to try as well as to charge and accuse the culprit. The word impeachment was not used, and it is found in this Pennsylvania frame of 1683 for the first time.
In this frame the dividing up of the work of impeachment as it appears in the National Constitution is found for the first time. The general assembly was to bring the impeachment, and the council was to try it and decide on guilt or acquittal. It was the natural result of the provision for a double legislature, and shows the gradual working out of a more detailed political form. When double legislatures were finally adopted in the Revolution this arrangement for impeachment accompanied them and was reproduced in the National Constitution.
The executive part of Penn's government was worked out with considerable detail. The governor and his council were to have care of the peace and safety, lay out towns, model public buildings, inspect the treasury, and establish schools. The governor was to preside at the council meetings and have a treble vote. This treble vote was probably some pet idea of Penn's.
But the most striking part about this description of executive duties is a sentence which sums them up in a general way:
"The governor and provincial council shall take care that all laws (statutes and ordinances which shall at any time be made within the said province) be duly and diligently executed."
This clause, shortened by omitting the part in parenthesis, which is mere surplusage, was adopted with little or no change in the constitutions of 1776, and finally appeared in the National Constitution as a summing up of the executive duties of the President in the phrase, "He shall take care that the laws be faithfully executed."
The germ of this clause had appeared in the Massachusetts charter of 1629, in a sentence which said not that any particular person or department should execute the laws, but simply that all the laws should be "duly observed, kept, performed, and put in execution." The Maryland charter of 1632 assigned to Lord Baltimore the duty of executing the laws, and in the Fundamental Orders of Connecticut of 1638 and the Concessions of East Jersey of 1665 the duty is assigned to the governor. The first step out of corporation forms was to say, with more words than were necessary, that all the laws should be kept, performed, and executed. The next step was to assign their execution to a particular department, still using more words than were necessary. The duty and the person to perform it being now defined, we find in the constitutions of 1776 that the language for expressing it is much abbreviated, until in the National Constitution it reaches complete condensation in the simple phrase, which covers everything, "He shall take care that the laws be faithfully executed."
There was also an interesting clause providing a way for amending the constitution. It could be done by the consent of the governor and six parts in seven of the council and assembly. Locke had provided that his constitution should never be altered, and other charters and constitutions had been silent on the subject, though, of course, it was generally understood that they could be changed by the authority that had made them. But this provision in Penn's constitution was the first appearance in American governments of any definite way of amending. It was repeated with various changes in the constitutions of 1776, until the way now found in the National Constitution was reached.
Annexed to Penn's frame are "Laws Agreed upon in England," many of which are what afterwards became known as bill-of-rights provisions, such as fair trial by jury, process to be in English, fees and fines to be moderate. We have already observed the first bill of rights of this kind starting in the Concessions of West Jersey, and the bill we find in Penn's frame is simply a development, with a few provisions added.
Penn's frame was amended, a few months after it was passed, by reducing the provincial council from seventy-two to eighteen members, and by adding that the governor must act "by and with the advice and consent of" the provincial council, — peculiar words, which have appeared several times, which seem to have been used in old trading-corporation charters, for they can be found in the charter of the Grocers' Company granted in 1429, and which, after being repeated all through the colonial charters and the constitutions of 1776, took their place in the National Constitution.
We must now consider the next charter in chronological order, — the second Massachusetts charter of 1691. The Puritans had created under their first charter a government so free and independent, and had assumed so many of the attributes of sovereignty, coining their own money and cutting the cross out of the English ensign, that they needed looking after. Soon after Charles II. came to the throne he became convinced that all the colonies required a little overhauling, Massachusetts most of all. It would be well, he thought, to hold dissenters like the Puritans with a somewhat stronger hand. Proceedings were begun to annul the Massachusetts charter, and they were consummated June 18, 1684.
For some years Massachusetts had no charter, and was under direct royal rule, with a governor appointed by the Crown. But in 1691 Mary and William granted a new charter, which embodied some of the developments we have seen in the other colonies. The people appear to have had some voice in shaping it, for they had their agents in England.
This charter of 1691 provided that there should be a governor, a deputy governor, and a secretary, all appointed by the Crown, and not elected by the people as in the old charter. The people were allowed to elect the members of a legislature called the house of freeholders. There were to be twenty-eight assistants elected by the general assembly, which was to consist of the governor, the assistants, and the house of freeholders, all sitting together.
The twenty-eight assistants were the most interesting feature of the government, for they were to be chosen to represent different localities of the colony, very much as senators are now chosen under our National Constitution. The province of Massachusetts, under this charter of 1691, was a union of the old province of that name with New Plymouth, Maine, and the land between the Sagadahoc River and Nova Scotia; and it is very significant that each of these divisions is given its representatives in the council, or assistants, as they were called, which afterwards developed into the Senate of the national government and represented the States. The union under the Massachusetts charter was a union of provinces which had been formerly, in a certain sense, distinct sovereignties, as the States which formed the Union under the National Constitution had been distinct sovereignties. It is certainly remarkable that the Massachusetts union should have foreshadowed the National Union in its method of giving representation to the provinces of which it was composed.
It is another instance to show how the natural conditions in America were of their own inherent force, and without imitation, constantly tending towards the form of government that was finally reached. It shows, also, that, in the forms which were gradually adopted, there was no thought of imitating anything in the British Constitution. The framers of the Massachusetts charter, in advancing the governor's council to the function of representing the separate provinces of a union, were certainly not imitating the House of Lords, for that body had no such function. They were merely conforming to natural conditions, using what had already proved itself suitable for certain purposes, and adapting means to ends in a very practical manner.
The confusion of legislative, executive, and judicial functions was rather worse than usual in this Massachusetts charter, for not only were the governor and the assistants part of the general assembly, but the governor and assistants were also to act as a court to probate wills and grant letters of administration.
By another provision, the governor, "with the advice and consent of" the assistants, appointed judges, sheriffs, marshals, and other officers, which was an appointing power similar to that of the President and Senate under the Constitution. The governor had also an absolute veto on all the bills passed by the general court.
The veto power is now clearly established in American governments. While showing one remarkable advance, this charter also contained the most important and best-tested provisions of previous experience.
There was one provision, however, of a peculiar character, and the result of the more stringent policy of colonial control which Charles II. had started. The governor had power to dissolve the assembly whenever he chose. By an amendment to the charter in 1726 the representatives could adjourn from day to day, and for a period of two days, but not longer without the consent of the governor. This power of the governors over the popular assemblies seems to have existed after the year 1701 in most of the colonies except Pennsylvania, and was always bitterly resented by the people. But in the end it proved to be a source of constitutional development; for their long experience with it led to a very careful framing of the powers of the President over Congress.
We now come to two frames of government in Pennsylvania which may be considered together, — the frame of 1696, usually known as Markham's frame, and the Charter of Privileges of 1701, usually known as the constitution of 1701. The frame of 1696 is noticeable chiefly for its reactionary tendency. It reduced to a normal condition Penn's frame of 1683, which, as we have seen, was excessively developed, — developed, in fact, far beyond any other colonial constitution.
The frame of 1696 was made by Governor Markham and the people during Penn's absence, and was to remain in force unless Penn should object to it. The principal feature of it was that the right to originate legislation was taken away from the council and given to the assembly. Thus this strange idea of creating an upper house which alone could originate laws, which had been a mere freak of Locke's and Penn's, was done away with forever in American governments.
A few years after this frame of Markham's Penn returned to the province, and in 1701, after much consultation with the people and repeated discussions and meetings, gave them the constitution of 1701, always regarded in Pennsylvania as a very good one, and under it the people lived until the Revolution.
It also was reactionary, and, as often happens when there has been excessive action, the reaction was excessive. Penn had attempted in his first frame to develop the council into a second house of legislature, and developed it too much. In the constitution of 1701 he went to the other extreme and abolished the council altogether. There was to be merely a governor appointed by himself and an assembly elected by the people.
The assembly was allowed to control its own adjournments without interference from the governor, — a right of which the Pennsylvanians were always very proud, — and they maintained it unimpaired down to the Revolution.
The assembly was also allowed to impeach officials and have all the power of an assembly according to the rights of freeborn subjects of England. In after-years, in its contests with the governor, the assembly relied on this clause to give it all the privileges of the British House of Commons. Some of the members became very learned in English parliamentary history, and their minutes are full of evidences of it.
Some new bill-of-rights provisions appear in this constitution, and some of the privileges given to the assembly were also distinct developments and became permanently embodied in American constitutional forms. The assembly was told that it could choose its own speaker and officers and "be judge of the qualifications and elections of its own members." This right and the very words in which it was given were repeated in the constitutions of 1776 and appeared in the National Constitution, Penn's excessive reaction in abolishing the council was corrected in a curious way, which shows how natural that body was to the colonial governments. The constitution did not provide for the election or appointment of a council, but a council was incidentally referred to in a clause which said that no person should be obliged to answer before the governor and council, or in any other place than an ordinary court of justice, unless appeals to the governor and council should be established by law.
It is difficult to understand why this strange side-reference to a council should have been put in unless it was the result of carelessness and haste in having the constitution quickly adopted on the eve of Penn's hurried return to England. At any rate, it was not long before Penn began appointing a council to assist the governor, and his heirs continued the practice. The assembly from time to time protested, and appealed to the constitution as not authorizing a council in any way. But the council was always appointed, and maintained its position as a de facto if not a de jure part of the government.
It acquired in time almost the same function as an upper house of legislature, because it would advise the governor to veto the bills of the assembly, and the governor was under instructions from the proprietors to be guided by the council. This, the assembly always declared, was an outrageous violation of its rights, because the constitution provided for only a single legislative body, and by the instructions to the governor and the appointment of the council a second house of legislature, unknown to the constitution, was forced upon the people. But it all shows how inevitable was the development towards a second house.
Our last charter is that of Georgia, granted in 1732. We should naturally expect it to show remarkable developments, but, owing to peculiar circumstances, it does not It differed from all the other colonial charters and constitutions, and was neither the charter of a trading company nor the constitution of a people, but a charitable trust or eleemosynary corporation. General Oglethorpe and some other good people wished to relieve the debtor prisons of England, and adopted the plan, by no means yet obsolete in Europe, of dumping their contents on America.
A grant of land was obtained, and the company was called the "Trustees for Establishing the Colony of Georgia in America." The trustees were in the first instance to appoint the common council, and as vacancies occurred in this council, by death or resignation, the members of the company could elect persons to fill them. The members of the company were to make rules and laws, to be approved by the Crown. The common council was to carry on the business affairs of the company and appoint judges, treasurers, secretaries, governors, and such other officers as should be found necessary, and to apportion land among the debtors, but not to any members of the company.
There is always some contribution towards development in the crudest and most reactionary document; so in this one we find the first attempt to separate the departments of government in a clause providing that no person holding an office of profit under the corporation should be a member of the corporation.
The corporation was to remain in existence twenty-one years, and in that time could establish courts of law. But the command of the militia was given to the governor of South Carolina. At the expiration of the twenty-one years such form of government could be established as the Crown should think best.
The scheme was not successful, and when the twenty-one years expired the trustees were glad to surrender. Soon after 1751 the Crown organized a government which resembled those of the other colonies, which have been already described. There were a governor, a council, — which seems to have sat as an upper house, — and an assembly, and the governor and council sat together as a court of chancery and admiralty.
CHAPTER III.
THE CONSTITUTIONS OF 1776.
THE Georgia charter of 1732, discussed in the preceding chapter, may very well be omitted from our consideration, for it was not in the line of development of the other governments. Its peculiar feature of creating a charity organization sets it completely aside.
This gives us the Pennsylvania constitution of 1701 as the last written frame of government that appeared in colonial times. The three Pennsylvania constitutions taken together, — of 1683, of 1696, and of 1701, — with their amendments, and the Massachusetts charter of 1691, constitute the most advanced colonial forms, and show the nearest approach in the colonial period towards the final goal of the national document.
By about the year 1700 the colonial governments seem to have all reached a stage of development which was sufficient for practical purposes. They had partially emerged out of the trading-company forms, and usually consisted of a governor, a governor's council, and a single-branch legislature, with a tendency on the part of the council to develop into an upper house of legislature, and one or two of the colonies had an upper house. Besides this, several of them had a few of the bill-of-rights provisions, which were afterwards much extended, and most of them had peculiar arrangements or peculiarly worded sentences, which afterwards appeared in the National Constitution.
This development was sufficient for the needs of the time, and in the seventy-five years that passed between the year 1700 and the outbreak of the Revolution there was little or no advancement that can be traced in documents or writings. No doubt the colonists discussed the subject, for while some of the colonies, like Connecticut and Rhode Island, which elected their own governors, were well content, others, like Massachusetts, which were under royal governors, saw many things in their forms of government that they would have liked to change. It was in this long period of apparent silence and inaction that it was gradually seen that the confusion of departments which prevailed in all the governments was a mistake.
But it was not until the year 1776, when all the colonies except Rhode Island and Connecticut set actively to work to make new constitutions for themselves, entirely free from any influence from the Crown, that there was developed any intensity of thought upon the subject In that year there was certainly a great school of constitution-making at work, and the comparison of ideas and conflict of opinion were a lesson and discipline in fundamental principles such as have never been known in America in any one year before or since.
Judging by the first constitution which was made at that time, the development in the subject since the year 1700 had been very slight This first constitution was that of New Hampshire. The work on it was begun December 21, 1775, and finished January 5, 1776. It was finished several months before any of the others were begun. There were no guides for it except the old colonial charters and constitutions, most of which had been made in the previous century, and it is not surprising that we find it a very crude instrument.
The province is still called a colony, and the constitution is to continue in force only "during the present unhappy and unnatural contest with Great Britain." The convention which framed it was elected by the people and called a "Congress." The constitution begins by providing that this Congress is to become the House of Representatives of the new government, and is to choose twelve persons, taking them from different counties, to be a distinct and separate branch of the legislature by the name of a "Council for the Colony."
If, however, the war should last longer than a year, this council was to be elected by the people, each county electing its proportion. The council was to appoint its own president, and both branches of the legislature must agree to every act before it could become a law. Neither branch could adjourn longer than from Saturday to Monday without the consent of the other. Money-bills must originate in the lower house. Both houses together were to appoint all public officers, including the general field officers of the militia. The office of governor was not provided for.
This was certainly, in some respects, a crude instrument. The absence of a governor and the appointment of all public officers by the legislature was barbarous. But still it adopts the idea of a double-branch legislature, which, as we have seen, had been gaining ground all through the colonial period; and, like the Massachusetts charter of 1691, it assigns to the upper branch the function of representing certain localities, — the counties, — in which we see the germ of the United States Senate's representation of States.
The provision that money-bills must originate in the lower house was, of course, familiar English parliamentary law, and was also a principle that had been successfully contended for in the colonial assembly of Pennsylvania, but had never appeared before in an American written frame of government.
The clause which says "neither branch shall adjourn for any longer time than from Saturday until the next Monday without the consent of the other" was repeated in various forms in the other constitutions, until we find it in the National Constitution in the form, "Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days."
South Carolina came next, and her constitution was finished March 26, 1776. This was before any of the others had been begun except New Hampshire: so New Hampshire's document was the only guide, and it was followed quite closely.
The convention, or provincial congress, as it was called, resolved itself into the general assembly, or lower house, of the new government, and, after October 21, 1776, was to be elected by the people. As in New Hampshire, the lower house was at first to choose the upper house, which was to be called the legislative council and be composed of thirteen members.
Here the resemblance to New Hampshire's constitution stops, for South Carolina is to have a governor called "President and Commander-in-chief;" and this is the first use of the term president to describe the executive in the constitutions of 1776. There are also to be a vice-president, and a privy council composed of the vice-president and six others, three from the assembly and three from the legislative council.
This privy council is to advise the president, when required, and was, no doubt, copied from or suggested by the privy council of the English king. As the governor's council of colonial times had passed into an upper house of legislature, it may have been thought necessary to supply its place by this privy council. It may also have been the mere personal suggestion of William Henry Drayton, who had great influence in the draughting of the constitution.
Some of the later constitutions of 1776 adopted this privy council, and added details for keeping a written register of its advice and opinions which should always be open to inspection. This is, I think, one of the few instances that can be found of a direct imitation of a foreign form; and it is to be observed that it is an imitation that failed. It was tried for a few years in several of the States and then abandoned. In future chapters we shall find other instances of this same fate befalling imitations, and it goes to show that foreign imitations or plagiarisms in constitution-making are not only few, but also usually unsuccessful.
The president, in the South Carolina constitution, was given an absolute veto. He could not, however, adjourn or dissolve the legislature, though he might call them before the time to which they stood adjourned. The advance here is evident, and requires no comment But the confusion of departments in the vice-president and privy council forming a court of chancery was gross.
Virginia's constitution was finished June 29, 1776, — a few months after South Carolina's. It was made by a convention of forty-five members of the house of burgesses, and has prefixed to it a bill of rights adopted June 12, 1776, the first part of which has the language of the opening paragraph of the Declaration of Independence. The rest of the bill of rights is remarkable as being very full and complete and containing more provisions than had ever appeared before in the colonies. Besides the ordinary bill-of-rights provisions, the bill contains some political maxims, and among these is the first statement in our constitutions of the principle that the legislative, executive, and judicial departments of government should be separate, and that the same persons should never exercise the powers of any two of them.
When we come to the constitution itself, we find it repeats the statement of the necessity of keeping the departments separate. The legislature is to consist of two houses, — a lower house, called the house of delegates, and an upper house, called the senate; and this is the first time the upper house is called a senate. As it was emerging from the condition of a governor's council, it was called, as in the New Hampshire constitution, a legislative council. But now it has become a legislative body in the full sense of the term, and is given an appropriate name. It is also representative of large districts or localities, as in the New Hampshire constitution.
Both the senate and the lower house are given power to choose their own speaker, appoint their own officers, and settle their own rules of proceeding. In subsequent constitutions we find this power given in very much the same words, with the addition that each house is to determine the elections and qualifications of its own members, and these phrases are repeated until they appear in the National Constitution.
All laws are to originate in the lower house, and the senate can only reject or approve, or amend with consent of the lower house. Money-bills, however, cannot be amended by the senate, but can only be rejected or approved. The lower house has the right to impeach, and the impeachments are to be tried not by the senate, but by a court.
This rather excessive privilege of the lower house alone having the right to originate legislation was a mere freak, which was not followed by the other States.
The governor is to be elected by joint ballot of the two houses, and is given the pardoning power, but not the veto power. He cannot adjourn the legislature, but can call them before the time to which they stand adjourned. He has to assist him a privy council of eight, chosen by joint ballot of both houses from their own members or from the people. The council is to choose a president, who shall be the lieutenant-governor, and the proceedings of the council in giving advice to the governor and other matters are to be entered in a book and signed by the members. Any member has the privilege of dissenting from any act of the council and entering his dissent in the book, and the book is to be always open to inspection by the legislature.
Subsequent constitutions in the other States copied this provision for the record-book of the council, and an unsuccessful effort was made to have a council of this sort in the National Constitution. But this imitation of the British privy council failed at every point, and was soon abandoned by the States that had adopted it.
The New Jersey constitution was begun on May 26 and finished July 3, 1776. This was the first of the constitutions of 1776 that was submitted to the people for their approval. The others had all been prepared and put in force by the conventions which framed them.
The New Jersey document was made about contemporaneously with the constitution of Virginia, and shows a strong resemblance to it. The legislature is to have two branches, — an assembly and a legislative council, — and the two branches are to elect the governor by joint ballot, as in Virginia. Both the upper and the lower house can, however, originate legislation, and the upper house is not confined to the mere right of rejecting the bills of the lower house. But the upper house cannot originate a money bill.
It is to be observed that the upper house is called a legislative council, going back to the name it had when it was just emerging from the condition of governor's council. There is also another provision which looks backward. The privy council is composed of three members of the legislative council, — a curious sort of restoration of the legislative council's old function of governor's council.
A method of impeachment, however, is provided which is quite advanced. The lower house is to bring the impeachment, and the upper house is to try it; and this plan was afterwards adopted in the National Constitution.
The governor is to be chancellor and surrogate-general, and the governor and the legislative council are to constitute a court of appeals. The confusion of departments is quite gross, and the doctrine of separation so distinctly announced in Virginia was evidently not yet appreciated in New Jersey.
Delaware's constitution was put in force September 21, 1776, and was closely modelled on those that had preceded it, but added some developments. The executive is called the president, as in the South Carolina constitution, and in several subsequent constitutions of 1776 the same word is used to describe the governor. Afterwards, when the chief magistrate of the United States was named President, the States all went back to the term governor.
In this Delaware constitution the president, with the advice of the privy council, may lay embargoes and prohibit the exportation of goods for a period not exceeding thirty days during a recess of the legislature. This was the first appearance of this provision, and it was often repeated afterwards. There is also in this constitution a method of amendment by five members in seven of the assembly and seven members of the legislative council. This way of amendment was evidently taken from the Pennsylvania colonial constitutions, and was the first appearance of a method of amendment in any of the constitutions of 1776. Each house of the legislature is for the first time given power to expel a member, and the provisions for adjournments show a nearer approach to methods finally adopted in the National Constitution.
The Delaware constitution, however, shows the usual confusion in the appointing of public officers. The president and the general assembly are to appoint the justices of the Supreme Court and the county courts; the president and privy council are to appoint the secretary, attorney-general, and some other officers; and the general assembly is to appoint generals and field officers of the militia and all other officers of the army and navy.
But the president, with the advice and consent of the privy council, may embody the militia and act as captain-general and commander-in-chief of them. In the constitutions of 1776 the governor is commonly described as commander-in-chief of the State forces. Sometimes he is called captain-general and commander-in-chief, and sometimes merely commander-in-chief. In the National Constitution the President is given part of this title, and called commander-in-chief of the army and navy of the United States.
Pennsylvania's constitution was finished September 28, a few days after Delaware's. It began with a bill of political and civil rights made up to some extent from the Declaration of Independence, which had been passed a few months previously. It provides for amendment by vote of the people, and then, strangely enough, clings to the old colonial system of governor, council, and assembly, without any second or upper house of legislature. This failure to fall in with the tendency towards an upper house may possibly have been due to the influence of Franklin, who had a fancy for a single-house legislature. But it was more probably due to the unprogressive element in the population, which at that time had seized the political power in Pennsylvania, and in after-years destroyed the prestige that had made Philadelphia the metropolis of the country.
But Pennsylvania soon got more than enough of a single house, which, having no check upon its action, became very reckless and endangered the liberties of the people. A sort of make-shift for a double house was provided for in compelling every bill to pass two sessions of the assembly before it became a law, but this proved entirely unsuccessful.
The president's council, which was to be known as the Supreme Executive Council, was to consist of twelve members elected from the different counties by the people. The president and council were to appoint public officers, propose business to the assembly, hear impeachments by the assembly with the justices of the Supreme Court, lay embargoes, pardon offences, and "take care that the laws be faithfully executed." This was another retrogression, and a most bungling contrivance. It was an attempt to create a twelve-headed executive with functions taken from the old governor's council of colonial times, and new ones added.
But the most curious part of this constitution was that it provided for a council of censors, two from each city and county, who were to see that the constitution was not violated and that all departments of government did their duty. It was to pass censure when duty was neglected, order impeachments, recommend measures to the legislature, and, when necessary, call a convention to amend the constitution. It was an awkward attempt to prevent unconstitutional legislation. Altogether, this was a most extraordinary constitution, not much of an advance, and caused great dissatisfaction in its working.
After Pennsylvania's constitution was put in force, more than a month passed away before a new one appeared, which was Maryland's, finished November 11, 1776. It begins with a bill of rights which was the most complete and advanced that had up to that time appeared. It announced again the doctrine that the legislative, executive, and judiciary departments should be kept separate. Then followed provisions about freedom of speech, trial by jury, right to petition, right of search, and quartering of troops on the people. In fact, it was so full that it completed the development of bills of rights, and the hundred years that have since elapsed have added little or nothing to it
When the National Constitution was submitted to the people, great complaints were made that it contained no bill of rights, and when the States finally agreed to adopt it it was with the understanding that a bill of rights should immediately be added by way of amendment. The first eleven amendments to the National Constitution contain this bill of rights, and they are taken, in many instances, word for word from the bill of rights of Maryland. For example, the following clause in the bill of rights of the Maryland constitution is copied verbatim in the eighth amendment to the National Constitution, except that the words "ought not to" are changed to "shall not:"
"Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Again, in the Maryland bill of rights we find, "That a well-regulated militia is the proper and natural defence of a free government;" and the second amendment to the National Constitution says, "A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." The Maryland bill of rights says, "No soldier ought to be quartered in any house in time of peace without the consent of the owner, and in time of war in such manner only as the legislature shall direct;" and the third amendment to the National Constitution says, "No soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law."
We find also in this Maryland bill of rights several other ideas which were adopted in the National Constitution, such as the prohibition of ex post facto laws, of attainder of treason, of the granting of titles of nobility, and of the receiving, by any person in public office, of a present from any foreign prince or state.
In the matter of political government the Maryland constitution provided for a legislature of two branches, a senate and a house