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The Evolution of the
Constitution of the United States
OTHER BOOKS BY MR. FISHER
Uniform luith this volume
THE MAKING OF PENNSYLVANIA
AN ANALYSIS OF THE ELEMENTS OF THE POPULATION
ANU THE FORMATIVE INFLUENCES THAT
CREATED ONE OF THK GREATEST
OF THE AMF.RICAN
STATES
Second Edition. With an entirely new chapter
lamo. Red buckram, $1.50
J. B. LIPPINCOTT COMPANY
PHILADELPHIA
PENNSYLVANIA: COLONY AND
COMMONWEALTH
ismo. Red buckram, $1.50
[JThe 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
Copyright, 1897,
BY
J. B. LippiNcoTT Company.
Preface
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 in-
strument by the requisite number of States in the fol-
lowing 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 Con-
stitution 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 dif-
ferent 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
3
Preface
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 docu-
ment 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 docu-
ments, 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 com-
ments and summaries.
Besides this detailed analysis, there are chapters giving
a general view of the growth and discussing the sup-
posed 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
CHAPTER I.
PACK
Confused Ideas as to the Origin of the Constitution . . ii
CHAPTER II.
The Colonial Charters and Constitutions 26
CHAPTER III.
The Constitutions of 1776 70
CHAPTER IV.
The Engush Sources of the Constitution 90
CHAPTER V.
The Evolution from the Colonial Charters Shown in
Detail 105
CHAPTER VI.
The EvoLUnoN of Federalism 215
CHAPTER VII.
The Evolution of Federalism Shown in Detail 267
5
Contents
CHAPTER VIII.
PACK
Clauses of the Constitution which were of Short De-
velx)pment 3io
CHAPTER IX.
Dutch Sources 3*5
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, 1 629.
7. Massachusetts Charter, 1629.
8. Maryland Charter, 1632.
9. Grant of New Hampshire, 1635.
10. Fundamental Orders of Connecticut, 1 638.
11. Grant of Maine, 1639.
12. Connecticut Charter, 1662.
13. Charter of CaroHna, 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.
7
Documents in the Evolution
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 CaroUna Constitution, begun November 12, 1776;
finished December 18, 1776.
38. Georgia Constitution, begun October i, 1776 ; finished Feb-
ruary 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 i, 1779 ; fin-
ished March 2, 1780.
45. New Hampshire Constitution, begun June 12, 1781 ; fin-
ished 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 CONSTITU-
TION.
To set men thinking and incite them to conduct in-
vestigations of their own is often more important than
to persuade and convince them. No words of Mr. Glad-
stone have been so much considered by the American
people, and none have aroused them to so much re-
search, as those in which he said that " as the British
Constitution is the most subtle organism which has pro-
ceeded from progressive history, so the American Con-
stitution 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 states-
man, and if the phrase had been applied to some na-
tions— 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
Evolution of the Constitution
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 ven-
eration 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, dis-
sent from it began to appear, here and there, in ad-
dresses 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 an-
other. In fact, there is a most extraordinary and even
ridiculous contradiction in the sources they assign. Mr.
Bryce, in his great work, "The American Common-
wealth," finds the sources in the British government
of King, Lords, and Commons, and he is followed by
Confused Ideas as to its Origin
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 sys-
tem, 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-govern-
ment, almost exactly resembled the old Teutonic village.
Between the occurrence of these two resemblances
centuries of time elapsed when such towns were un-
known 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 some-
thing in Persia, and five thousand years and three thou-
sand 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 ex-
traordinary suggestions and hypotheses, which their ad-
vocates soon extend beyond their proper sphere of mere
13
Evolution of the Constitution
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 promi-
nent 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 im-
pressed 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 specu-
lations, and I admit that there may possibly be some-
thing more than fascination in the theory of the recur-
rence 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 ances-
14
Confused Ideas as to its Origin
tors of the English and Americans, had a federal govern-
ment hke that of the United States, is certainly most
interesting and impressive :
" Every Herad was independent of the Fylki in its local afifairs,
and every Fylki was independent one from the other, each hav-
ing 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 AUsherjar Thing
(Thing of all the hosts), and all had to abide by the decision
taken . . . The closest approach to this ancient form of govern-
ment is that of the United States."
But before we resort to these far-fetched and roman-
tic 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 foot-
prints 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
15
Evolution of the Constitution
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 sci-
entific 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 dis-
agreement among them, or at least not the extraordi-
nary contradiction which we now find. The contradic-
tion follows naturally enough from their method ; for
as soon as they leave the direct line of growth and be-
gin 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 encounter-
ing 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 par-
ticular 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 imita-
tion ; 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
i6
Confused Ideas as to its Origin
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 coun-
try 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 in-
stitutions are used in these instances argumentatively,
and are not imitated in the true sense of the word, be-
cause 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 peo-
ple 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
2 17
Evolution of the Constitution
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 cer-
tainly not an imitation of the veto power of the English
king, for it was developed solely out of American expe-
rience 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 lan-
guage 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
i8
Confused Ideas as to its Origin
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 con-
clusion that the United States Senate was a Dutch im-
portation.
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 Wcis 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 pre-
ceded the framing of the Constitution, in 1787. Lit-
erally, the time began with Sir Walter Raleigh's charter
of 1 584, which makes a period of two hundred and three
years. Those two hundred years were ample for forma-
tion 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 cill at hand, has been well analyzed and arranged by
»9
Evolution of the Constitution
eminent scholars, and all educated people are more or
less familiar with it. But our colonial history is an un-
known land of scattered material, — long, wordy docu-
ments 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 be-
ginnings ; 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, experi-
mental, and elementary.
When Massachusetts sent her delegates, in the year
1787, to frame the National Constitution, she had had
Confused Ideas as to its Origin
over a hundred and fifty years' experience of constitu-
tion-tinkering. During that time she had Kved 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
Hberal 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 Revo-
lution, and, taken all in all, a very severe and long prep-
aration 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 consti-
tution which she had made for herself in i yjd, — 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 experi-
Evolution of the Constitution
ence 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 evi-
dent sources of the National Constitution, and that the
National Constitution when framed, in 1 787, 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 in-
geniously 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 ex-
perience.
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
Confused Ideas as to its Origin
to the people to make such a government as they could
agree upon with their feudal proprietor. The first con-
stitution of Connecticut, however, was made by the
people of their own accord, without any outside influ-
ence. These native constitutions might naturally be
expected to differ very radically from the royal char-
ters. 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 estab-
lished 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 inde-
23
Evolution of the Constitution
pendence 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 govern-
ment This sentiment was generally believed to be
wrapped up in the old charters and colonial constitu-
tions, 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 con-
stitutional experience to the American people than any-
thing 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 experi-
ence 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
24
Confused Ideas as to its Origin
1778 which was rejected by her people, and another in
1779 which was adopted March 2, 1780. New Hamp-
shire, which had adopted a constitution in 1776, framed
another in 1 779 which was rejected, and another in 1 784
which was adopted. But even in the instances of Mas-
sachusetts 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 assem-
bling of the Convention, but it differed very slighdy
from her constitution of 1777, which was a copy of the
Pennsylvania constitution of 1776.
When we read all these constitutions of 1776 to-
gether, in the light of our present knowledge, we see at
once that they bear a most curious but immature re-
semblance to the National Constitution. They are full
of blunders, untried experiments, well-tried experiments,
individual suggestions good and bad, old colonial tra-
ditions 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.
«5
CHAPTER II.
THE COLONIAL CHARTERS AND CONSTITUTIONS.
(1584 to 1732.)
These old documents, when carefully studied in chron-
ological order, show a steady development towards the
forms of the National Constitution of 1787, The ear-
liest 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 dis-
cover 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 hun-
dred 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 resti-
26
Colonial Charters and Constitutions
tution, under penalty of being declared out of the alle-
giance 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 govern-
ment 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 1 5 84 had been wholly unsuccessful, and no settiement
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, de-
scribing 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 be-
tween 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 coun-
cil of the same number in each of the two colonies.
87
Evolution of the Constitution
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 pro-
prietor and reserved to the king, and the administra-
tion of the laws was given to a more or less numerous
council.
The power to make war and coin money was of a de-
cidedly 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
6f 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 govern-
ing 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 de-
veloped as we have it to-day.
Thus, the charter of the famous Grocers' Company,
granted in 1429, places the whole power and govern-
ment in three or four individuals called wardens. They
are to govern ; and apparently, so far as the charter
28
Colonial Charters and Constitutions
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 gover-
nor or governors." This term "assistants" was after-
wards, 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
* An interesting account of some of these old companies can
now be found in Gawston and Keane's " Early Chartered Com-
panies. ' ' 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 for-
eign countries. They were necessary as the most convenient
method of concentrating capital and energy, because private indi-
viduals 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 sug-
gested 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; East-
land Company (also for trade to Russia), 1579; Turkey Com-
pany (for trade to the Mediterranean), 1581 ; Marocco Company,
1585 ; First Guinea Company, 1588 ; Elast 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 Com-
pany, 1670 ; Fourth Guinea Company, 1672.
39
Evolution of the Constitution
such model. Its draughtsmen naturally followed some
of the forms to which they were accustomed in organ-
izing 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.
Three years after, in 1 609, another charter was issued
for Virginia, which professes to be an enlargement and
improvement on the first one. It is less vague. Ex-
perience 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 corpora-
tion modelled on the trading companies of the time,
with the usual expressions giving a common seal, per-
petual 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 ad-
venturers 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
30
Colonial Charters and Constitutions
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 un-
ruly men among their own number. They were very
much Hke the Hudson's Bay Company and the East
India Company, whose charters show this same pecu-
liarity 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 pro-
vide 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 col-
ony, 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
3«
Evolution of the Constitution
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 abso-
lutism of the two previous charters has disappeared.
In 1611-12 another charter added a further develop-
ment, 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 offi-
cers 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 af-
fairs of the company from day to day, and we shall soon
see it become the governor's council. There is cJso 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 devel-
oped 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 leg-
islate. 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
32
Colonial Charters and Constitutions
was doubtless well suited to the restless and unruly
spirits of the adventurers. One of the governors con-
trolled 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 ex-
perience 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 govern-
ments and of the National Constitution. It is simply a
slight extension of the forms of the old trading corpo-
ration to suit the conditions in Virginia. The Massa-
chusetts 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 pre-
vailed in Virginia, The members of the company found
it inconvenient to meet all together, and they trans-
ferred their law-making power to a smaller body of
delegates.
This simple type of governor and council for the ex-
ecutive and a single house of legislature was not copied
from the British form of government, but was developed
3 33
Evolution of the Constitution
by circumstances and necessities from the trading com-
pany. It remained the fundamental form of govern-
ment 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 ex-
pand 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 govern-
ment, 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 legisla-
ture at his pleasure. The constitution of Virginia be-
came one of custom and laws passed from time to time,
the result of what had been done under the charters, of
34
Colonial Charters and Constitutions
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. Ply-
mouth" 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 gov-
ernment. It was drawn up on the " Mayflower" by the
Pilgrim Fathers before they landed on the coast of Massa-
chusetts, 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 de-
tails, 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 mem-
bers 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.
35
Evolution of the Constitution
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 poli-
ticque 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 per-
mission of the Virginia charter of 1611-12, which al-
lowed 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 pam-
phlet entitled "A Brief Relation of the Discovery and
Plantation of New England," which was intended to en-
courage 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 depu-
36
Colonial Charters and Constitutions
ties 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 mas-
ter of ordnance for ammunition and artillery, and an
admiral for all marine affairs. The president and coun-
cil in England were to order the assembling of the gen-
eral assembly and " give life to the laws," which proba-
bly 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 gov-
ernment 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 modem
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 modem board of directors or
trustees, and the governor corresponded to the modem
president.
Very quickly, however, the freemen, finding it incon-
venient to meet in a body to transact the company's
37
Evolution of the Constitution
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 Virginiei,
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 legis-
lative functions, natural and proper enough perhaps in
a trading company. When the legislature was devel-
oped out of the inconvenience of the freemen all meet-
ing together, the same confusion continued. The legis-
lature, the assistants, and the governor sat together to
make laws ; and after a time the assistants sat as a sep-
arate body.
This mingling of the distinct departments of govern-
ment was common in all the colonies, and was the natu-
ral 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 un-
soundness 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
38
Colonial Charters and Constitutions
those departments entirely distinct, and the evolution on
this point was complete.
In the Massachusetts charter, as in the Virginia char-
ter, there is no copying of the forms of the British gov-
ernment 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 gov-
ernor'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 offi-
cers 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,
39
Evolution of the Constitution
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 cdl they wanted
within the forms of a corporation. There was no pro-
vision, 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 govern-
ment he and his colonists could agree upon. This was
a considerable advance on the absolutism of the pro-
prietary 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 privi-
lege 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
40
Colonial Charters and Constitutions
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 to-
gether 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 des-
potism 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 pro-
prietor 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 govern-
ment, 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
4«
Evolution of the Constitution
exceedingly interesting, because it is the first constitu-
tion made upon American soil without any interference
or influence from the British Crown. The Connecticut
people who made it had migrated from the Massachu-
setts 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 mu-
tual 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 corpo-
ration forms or Crown influence.
It is curiously worded, and begins wrong end fore-
most The duties of the legislature are described be-
fore 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 elec-
tion, 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 coun-
cil, like the assistants in Massachusetts. In fact, the
Massachusetts assistants were often spoken of as magis-
trates. 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
4«
Colonial Charters and Constitutions
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 legis-
lature 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 depu-
ties elected by the people, and governor, magistrates,
and deputies all sit together as a single-branch legisla-
ture. 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 gov-
ernor was surrendered by the freemen.
Even when left to themselves, therefore, and uninflu-
enced 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 fun-
damentals deserve mention. The magistrates are dis-
tinctly 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
43
Evolution of the Constitution
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 ob-
vious step towards referring all political power to the
people. The government established under it was mod-
elled on those that already existed in Massachusetts and
Virginia, and consisted of a governor, governor's coun-
cil, 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 Massachu-
setts, and when they sent Winthrop to England as their
agent to obtain a charter he naturally followed the Mas-
sachusetts 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
44
Colonial Charters and Constitutions
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 gov-
ernment 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.
45
Evolution of the Constitution
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 some-
times given to the executive department and sometimes
to the legislative, until, as we near the National Consti-
tution, 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 crimi-
nal. 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 gov-
ernment 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 corpo-
ration. It might possibly be implied as part of the
necessary powers of a corporation which was to under-
take the unusual task of settiing and planting a wilder-
ness. 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
46
Colonial Charters and Constitutions
very bitter dispute whether the governor or the assem-
bly had the right to institute courts.
As the Rhode Island charter was granted the year
after that of Connecticut and contains the same pro-
visions 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 instru-
ment 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 assem-
bly 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 Eng-
land, they may be said to have been draughted by
American influence, the result of American experi-
ence, 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 govern-
ments was the legislature composed of an upper and a
lower house acting as a check on each other. The
47
Evolution of the Constitution
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 hinx
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 cir-
cumstances,— the circumstances of planting and trade
instead of trade alone, — and by experience in those cir-
cumstances somewhat developed and enlarged in the
direction of a true political government
Two or three years after these charters of Connecti-
cut 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 accord-
ing 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
48
Colonial Charters and Constitutions
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 govern-
ment.
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 Conces-
sions 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 as-
sembly 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 Ameri-
can government a long way out of the old forms of
trading corporations ; and we also find that the pro-
prietors 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.
4 49
Evolution of the Constitution
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 adjourn-
ments and giving that control to the governor and his
council. But two years afterwards, in 1674, the develop-
ment 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 1 702, 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 Con-
cessions.
About four years after the " Concessions and Agree-
ments 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 constitu-
50
Colonial Charters and Constitutions
tion of John Locke, in 1669. It was prepared for the
government of the CaroHnas 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 prac-
tical men who were politicians or lawyers, but by a phi-
losopher who was idealizing. Nevertheless, it is valuable
as showing development, for Locke, although a philos-
opher, was also a human being, influenced by the opinion
of his time, and he had read all the charters and con-
stitutions 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 com-
pletely 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 seigni-
ories, baronies, and precincts, and the precincts into
colonies. The head, or governor, was to be called the
palatine. There were to be lords proprietors, land-
graves, and caziques ; also admirals, chamberlains, chan-
cellors, 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
Evolution of the Constitution
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 Con-
cessions of East Jersey. He also provided for the col-
lection 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 par-
liament unless it had passed the grand council. This
was the first appearance in American written constitu-
tions 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 intro-
duced 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
5a
Colonial Charters and Constitutions
difficulty with these written constitutions would be in
devising some body or department which should prevent
infringements and prevent the passage of unconstitu-
tional 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 com-
mitted. 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 es-
tates 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 tlie Pro-
prietors of West Jersey," which appeared in 1677. It
begins by appointing commissioners who are to gov-
ern the colony by instructions received from the pro-
prietors until other commissioners are elected by the
53
Evolution of the Constitution
inhabitants, and these commissioners elected by the in-
habitants 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 fun-
damental laws had been reading Locke's constitution,
for they oegin by trying to invent a method of prevent-
ing unconstitutional legislation. The constitution must
not be violated by the assembly, they say, and any as-
semblyman 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 be-
ginning of them in American governmental documents.
The remaining provisions for West Jersey are, how-
ever, 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 instru-
ment,— of slight advance, and in some respects a re-
action. The same fate befell it as befell the Conces-
sions of East Jersey. It was surrendered and abrogated
when the two provinces became one colony under direct
royal government in 1702.
54
Colonial Charters and Constitutions
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 gaverning the province during
the king's pleasure. At first New Hampshire had been
a proprietary colony under John Mason ; but the pro-
prietorship 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 coun-
cil 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 de-
partments. 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, Con-
necticut, 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 be-
fore been given in New England.
The president and council are also given the power
of commanding the militia. This power was not dis-
tinctly 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
55
Evolution of the Constitution
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 recom-
mend to the general assembly such acts, laws, and ordi-
nances 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 govern-
ment This was certainly something in the nature of a
president's message, an idea afterwards worked out in
the New York constitution of i 'j'j'j 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 Eng-
land, 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,
56
Colonial Charters and Constitutions
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 in-
stincts 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 constitu-
tion.
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 develop-
ment 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 :
57
Evolution of the Constitution
" 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 govern-
ment 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 impor-
tant developments, kept well within legitimate lines and
swerved comparatively little from the normal.
As we read along in his constitution we find a gov-
ernor, 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 as-
sistants 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
58
Colonial Charters and Constitutions
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 insig-
nificant, 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 legisla-
ture until long after the Revolution.
In developing the council so excessively Penn natu-
rally gave to it the power to create courts of law, which
in the other governments was usually given to the gen-
eral 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 ap-
parentiy 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 impeach-
ment as it appears in the National Constitution is found
for the first time. The general assembly was to bring
59
Evolution of the Constitution
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 Revo-
lution 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 paren-
thesis, 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 Massa-
chusetts 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
60
Colonial Charters and Constitutions
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 1 776 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 appear-
ance 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
61
Evolution of the Constitution
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 gov-
ernor 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 i '^'](>, took
their place in the National Constitution.
We must now consider the next charter in chrono-
logical order, — the second Massachusetts charter of
1 69 1. 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, Mas-
sachusetts 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.
62
Colonial Charters and Constitutions
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 otl]er colonies. The people appear
to have had some voice in shaping it, for they had their
agents in England.
This charter of 1 691 provided that there should be a
governor, a deputy governor, and a secretary, all ap-
pointed 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 free-
holders, 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 be-
tween 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
63
Evolution of the Constitution
Union under the National Constitution had been dis-
tinct 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 condi-
tions 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 Con-
stitution. The framers of the Massachusetts charter, in
advancing the governor's council to the function of rep-
resenting the separate provinces of a union, were cer-
tainly 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 Massachu-
setts 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, sher-
iffs, marshals, and other officers, which was an appoint-
ing power similar to that of the President and Senate
under the Constitution. The governor had also an ab-
solute veto on all the bills passed by the general court
64
Colonial Charters and Constitutions
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 char-
acter, 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 Pennsyl-
vania, 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 Penn-
sylvania 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 re-
main in force unless Penn should object to it The
5 6S
Evolution of the Constitution
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 re-
turned to the province, and in 1701, after much con-
sultation 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 ex-
cessive. 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
1 70 1 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 adjourn-
ments without interference from the governor, — a right
of which the Pennsylvanians were always very proud, —
and they maintained it unimpaired down to the Revo-
lution.
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
66
Colonial Charters and Constitutions
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-refer-
ence to a council should have been put in unless it was
the result of carelessness and haste in having the con-
stitution 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
67
Evolution of 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, be-
cause the constitution provided for only a single legis-
lative body^ and by the instructions to the governor and
the appointment of the council a second house of legis-
lature, unknown to the constitution, was forced upon the
people. But it all shows how inevitable was the de-
velopment 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 chari-
table trust or eleemosynary corporation. General Ogle-
thorpe 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 Geor-
gia in America," The trustees were in the first instance
to appoint the common council, and as vacancies oc-
curred in this council, by death or resignation, the mem-
68
Colonial Charters and Constitutions
bers 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 coun-
cil was to carry on the business affairs ot 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 develop-
ment 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 corpo-
ration 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 es-
tablished 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.
69
CHAPTER III.
THE CONSTITUTIONS OF 1 776.
The Georgia charter of 1732, discussed in the pre-
ceding chapter, may very well be omitted from our con-
sideration, 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 170 1 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
1 69 1, 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 legis-
lature, 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 pecuHar arrangements
70
The Constitutions of 1776
or peculiarly worded sentences, which afterwards ap-
peared 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 1 700 and the outbreak of the Revolution there
was little or no advancement that can be traced in docu-
ments or writings. No doubt the colonists discussed
the subject, for while some of the colonies, like Con-
necticut 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 colo-
nies except Rhode Island and Connecticut set actively
to work to make new constitutions for themselves, en-
tirely 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 consti-
tution-making at work, and the comparison of ideas and
conflict of opinion were a lesson and discipline in funda-
mental 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
71
Evolution of the Constitution
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 consti-
tution 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 peo-
ple 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 coun-
ties, to be a distinct and separate branch of the legisla-
ture 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 instru-
ment The absence of a governor and the appointment
of all public oflficers 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
72
The Constitutions of 1776
through the colonial period ; and, like the Massachusetts
charter of 1691, it assigns to the upper branch the func-
tion 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 parlia-
mentary 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, 1 776. 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 constitu-
73
Evolution of the Constitution
tion 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 gov-
ernor'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, ad-
journ or dissolve the legislature, though he might call
74
The Constitutions of 1776
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 CaroHna's. It was made by a
convention of forty-five members of the house of bur-
gesses, 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 Inde-
pendence. 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 colo-
nies. 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 dele-
gates, 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 ap-
75
Evolution of the Constitution
propriate name. It is also representative of large dis-
tricts or localities, as in the New Hampshire constitu-
tion.
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 subse-
quent 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 con-
sent 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 sen-
ate, 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 ad-
journed. 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
76
The Constitutions of 1776
and signed by the members. Any member has the privi-"'
lege of dissenting from any act of the council and enter-
ing 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 contem-
poraneously 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
77
Evolution of the Constitution
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 con-
stitute a court of appeals. The confusion of depart-
ments is quite gross, and the doctrine of separation so
distinctly announced in Virginia was evidently not yiet
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 execu-
tive 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 pro-
hibit 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 re-
peated 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
78
The Constitutions of 1776
Pennsylvania colonial constitutions, and was the first ap-
pearance of a method of amendment in any of the con-
stitutions of 1 776. 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 secre-
tary, attorney-general, and some other officers ; and the
general assembly is to appoint generals and field offi-
cers 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 con-
stitutions 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 amend-
ment by vote of the people, and then, strangely enough,
79
Evolution of the Constitution
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 ses-
sions 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 con-
trivance. 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
80
The Constitutions of 1776
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
1 1, 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 free-
dom 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 Constitu-
tion 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
6 81
Evolution of the Constitution
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 in-
fringed." 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 Consti-
tution, such as the prohibition of ex post facto laws,
of attainder of treason, of the granting of titles of no-
bility, 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 of delegates. The forms in pre-
vious constitutions were, for the most part, followed ;
8a
The Constitutions of 1776
but the lower house was given the right to inquire into
complaints and grievances as the grand inquest of the
State, to punish for contempt or breach of privilege, and
to commit any person to jail for any crime, to remain
until discharged by law. The senate, it is interesting
to observe, is to be chosen by electors in each county,
— ^very much after the manner adopted in the National
Constitution for electing the President
A month later, December 18, 1776, North Carolina's
constitution appeared. It begins with a bill of rights
copying many of the provisions that we have just ob-
served in Maryland and forbidding retrospective laws.
The only new provision, which was afterwards univer-
sally accepted, is that all bills shall be read three times
in each house before they become laws, and must be
signed by the speakers of both houses. Except for
this, there is nothing particularly advanced about this
constitution, and it provides no way of amendment
The Georgia constitution, adopted February 5, 1777,
shows no development whatever. In fact, it goes back
to the old colonial system of a governor, a governor's
council, and a single-branch legislature. The pardoning
power is given to the legislature instead of to the gov-
ernor, and the document is in every way an inferior
one.
New York's constitution was adopted April 20, 1777.
It had been a long time in making, — in fact, since
July 10, 1776. Much difficulty seems to have been
experienced with it, and the convention adjourned and
readjoumed repeatedly, moving about from place to
place. In most respects it conformed to previous in-
83
Evolution of the Constitution
struments, but had two striking developments which
passed into the National Constitution.
It begins with a long and rather irrelevant preamble,
reciting the condition of the country in general and of
New York in particular, and then quotes the whole of
the Declaration of Independence, of which it highly ap-
proves. When we come to the frame of government
we find a legislature consisting of an assembly and a
senate. The governor or chancellor and the judges of
the Supreme Court are to constitute a council to revise
all the bills of the legislature before they are passed into
laws, so as to prevent hasty legislation. This council
is also to have a veto power if they think a bill should
not be passed, and this veto power is described in al-
most the same language as the veto power of the Presi-
dent in the National Constitution :
"And that all bills which have passed the Senate and Assem-
bly shall, before they become laws, be presented to the said coun-
cil for their revisal and consideration ; and if upon such revision
and consideration it should appear improper to the said council,
or a majority of them, that the said bill should become a law in
this State, that they return the same, together with their objec-
tions thereto in writing, to the Senate or House of Assembly ^n
whichsoever the same shall have originated), who shall enter the
objections sent down by the council at large in their minutes,
and proceed to reconsider the said bill. But if, after such recon-
sideration, two-thirds of the said Senate or House of Assembly
shall, notwithstanding the said objections, agree to pass the same,
it shall, together with the objections, be sent to the other branch
of the legislature, where it shall also be reconsidered, and, if ap-
proved by two-thirds of the members present, shall be a law.
And, in order to prevent any unnecessary delays, be it further
ordained that if any bill shall not be returned by the council
84
The Constitutions of 1776
within ten days after it shall have been presented, the same shall
be a law, unless the legislature shall, by their adjournment, ren-
der a return of the said bill within ten days impracticable ; in
which case the bill shall be returned on the first day of the meet-
ing of the legislature after the expiration of the said ten days."
The National Constitution, in Section 7 of Article I.,
after providing that the President, if he approve of a bill,
shall sign it, goes on to say, —
" But if not, he shall return it, with his objections, to that house
in which it shall have originated, who shall enter the objections at
large on their journal and proceed to reconsider it. If after such
reconsideration two-thirds of that house shall agree to pass the
bill, it shall be sent, together with the objections, to the other
house, by which it shall likewise be reconsidered, and, if approved
by two-thirds of that house, it shall become a law. ... If any
bill shall not be returned by the President within ten days (Sun-
days excepted) after it shall have been presented to him, the
same shall be a law, in like manner as if he had signed it, unless
the congress by their adjournment prevent its return, in which
case it shall not be a law. ' '
This shows with great clearness how the modified veto
power of the President in the National Constitution was
gradually worked out on American soil, and that it was
not a copying of the absolute veto power of the British
king. The two quotations also show how the National
Constitution improved and simplified in language all
the provisions it took from previous documents.
The New York governor is also to send to the legis-
lature a message informing it of the condition of the
State, and recommending to its consideration matters
that he deems important ; and this, of course, suggested
85
Evolution of the Constitution
the similar provision in the National Constitution for the
President's message.
These resemblances to the National Constitution are
certainly remarkable. But in other respects the New
York constitution had nothing in it particularly worthy
of notice, except that it provided for voting by ballot
as an experiment to see if it was better than viva voce
voting. The assembly was also once a year to appoint
a council of senators to appoint public officers. This
was also evidently an experiment The assembly was
to bring impeachments, and the impeachments were to
be tried before a court consisting of the president, the
senators, the chancellor, and the judges of the Supreme
Court
The constitution of Vermont was adopted July 8,
1777, but it shows no advancement, because it was
copied almost word for word from the constitution of
Pennsylvania. It followed the Pennsylvania plan of a
governor and council, with a single-branch legislature,
and even copied the Pennsylvania council of censors.
The rejected constitution of Massachusetts was ordered
by the convention to be laid before the people February
28, 1778. Although voted down by the people, it em-
bodied much of the best thought of the time in consti-
tution-drawing. Its legislature was to consist of a senate
and a house of representatives, the same names that
were afterwards used in the national document, and the
senators, twenty-eight in number, were to be chosen from
certain districts. The senate and the house were to be
distinct bodies, and money-bills could originate only in
the house. The governor was president of the senate,
86
The Constitutions of 1776
commander-in-chief of the militia, and admiral of the
navy. He could also grant reprieves for six months, but
had not the pardoning power, which was placed in a sort
of committee, consisting of the governor, the lieutenant-
governor, and the speaker of the house of representa-
tives. The governor could lay embargoes for forty
days in a recess of the general court, and he and the
senate were to try impeachments which should be
prosecuted by the house. There was also a provision,
taken from the New York constitution, that the gov-
ernor should inform the legislature of the condition of
the State and recommend matters to its consideration.
This rejected constitution disclosed no new develop-
ments, but contained most of the best provisions which
had been in previous documents.
A new constitution for South Carolina was framed
about the same time, and finished March 19, 1778, but
did not go into effect until November of that year. It
provided for a governor, a senate, and a house of repre-
sentatives, and was in other respects so well abreast of
the times that no comment is required. In fact, the
State constitutions had now brought forth about all
that they were to contribute to the national document
Their senate and house of representatives, methods of
adjournment, impeachment, veto power, and bills-of-
rights provisions were almost the same as in the
National Constitution.
New Hampshire also at this time framed a new con-
stitution for herself, which was finished June 10, 1778,
submitted to the people, and rejected. It was very
simple and short The previous constitution had pro-
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Evolution of the Constitution
vided no governor, and this one did not definitely pro-
vide a governor, but gave the president of the council
some of the usual executive powers. The council was
an upper house of the legislature, and elected its own
president Besides this double-branch legislature, one
or two other modern improvements were added ; but
New Hampshire was very backward in constitutional
development, and seemed disinclined to make much
effort to advance.
The next constitution in order was one which Massa-
chusetts finally persuaded her people to accept in 1 780.
It was very elaborate and verbose, giving reasons for its
provisions, and full of generalities about the sovereignty
of the people and the absurdity of hereditary titles, all
of which was probably thought necessary to overcome
the suspicions of the people and gain their acceptance
of the instrument The governor is given the modified
veto power which we found in the constitution of New
York, and in other respects this Massachusetts consti-
tution, like the one that was rejected, is fully up to the
times. One or two new developments appear, — a provi-
sion about the suspension of habeas corpus, and another
giving members of the legislature privilege from arrest,
both of them very like similar provisions which after-
wards appeared in the National Constitution.
New Hampshire, like Massachusetts, having had her
constitution of 1778 rejected by the people, made
another attempt, and in 1784 secured a new constitu-
tion. It requires, however, but little comment, because
it was copied from the Massachusetts constitution of
1780. Only one new development appeared, — a pro-
88
The Constitutions of 1776
vision prohibiting persons accused of crime from being
twice tried for the same offence. This afterwards ap-
peared in the National Constitution, and has been almost
universally copied in modern State constitutions.
The last constitution of all was a new one for Ver-
mont in 1 786. But it was a mere repetition, with slight
changes, of her constitution of 1777, which was taken
from the Pennsylvania constitution of 1776.
89
CHAPTER IV.
THE ENGLISH SOURCES OF THE CONSTITUTION.
After reading the assertions of learned writers that
our Constitution was modelled on the British govern-
ment as it existed in 1787, I have sometimes turned to
the words of the Constitution to see the resemblance,
and have never been able to find it. As one reads
along, sentence after sentence, everything seems so
un-English and so original and peculiar to our own
locality that the mind is forced to the conclusion that
it either grew up as a natural product of the soil or
was invented off-hand, — struck off at a given time, as
Mr. Gladstone says. I recommend to those who be-
lieve in the British model theory to adopt this simple
plan : Read our Constitution, sentence by sentence,
from beginning to end, and see how many sentences
they can trace to an origin in the British government.
I do not deny that in a certain sense it is all English.
In fact, I have taken considerable pains to show how
our Constitution was developed by English colonists
out of the forms of English trading corporations through
the English colonial charters. Nor will any one deny
that our language, literature, laws, and many of our
customs and modes of thought, as well as our character-
istic instincts and feelings, are of English origin. I
would be the last person in the world to dispute the
90
English Sources
Anglo-Saxon influence in our civilization. But all this
is very different from the dogma some wish to establish,
that our Constitution was taken or copied from or sug-
gested by the forms of the British government as it ex-
isted in 1787. In my opinion, there was no copying,
because we were so thoroughly Anglo-Saxon in our
instincts and feelings that imitation was excluded. We
acted after the manner of our race, and built, stone
by stone, out of the natural material and conditions
round us.
In the first eleven amendments to the Constitution
a number of the provisions about trial by jury and free-
dom of speech were doubtless evolved from the ex-
perience of the race in England. But even these, as
already shown, were worked out slowly and re-evolved
on American soil. In the body of the Constitution it-
self— the political frame-work proper — there is little or
nothing that can be traced to the forms of the British
government as it existed in 1787, or at any other time
for hundreds of years previous.
I do not deny that the framers of our Constitution
considered and discussed the forms of the British Con-
stitution. But they considered them principally, as the
minutes of their debates will show, for the purpose, or
at any rate with the result, of avoiding them. They
were intelligent men, — a large number of them were
college-bred, — and they discussed the forms of govern-
ment of all countries. They were not unmindful of the
example of Holland, the democracies of Greece, the
Roman republic and empire, and the free republics of
the Middle Ages. They took what light they could
9i
Evolution of the Constitution
from them all ; and I think as good an argument could
be framed to show that they were guided by what they
knew of classic antiquity as could be brought forward
to prove that they were guided by the British Consti-
tution.
But the foundation for all their final decisions, the
basis which the forms of government in Europe merely
illustrated or made more certain, was their own expe-
rience of nearly two hundred years with the colonial
charters and constitutions and the constitutions of 1776.
What they took from England went back through that
two hundred years, and then not to the British govern-
ment, but to the forms of the old trading charters.
What had been evolved from the trading charters had
been so long with us that it was completely American-
ized, and it was valued by the framers of the Constitu-
tion for that reason, and because it had been tested by
two hundred years of American life.
They did not commit the absurdity of skipping those
two hundred years of their history, or of crossing an
ocean and entering other countries to copy constitu-
tions. If they had done such a thing it would have
been very unlike the Anglo-Saxon race. On the con-
trary, they did, I think, just what we should expect of
that race. They took their own experience as it was
up to that date in the place and community for which
they were making a frame of government They made
no skips or jumps, but went backward in the past di-
rectly from themselves and in their own line, taking for
their guide that which was nearest to them and latest
developed, provided it had been tested in that line of
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English Sources
their own past. The Anglo-Saxon always works in this
way, step by step, beginning with what he has and what
is directly applicable. He seldom, if ever, obliterates
his past or goes aside or afar to seek a new theory, and
never invents a brand-new political fabric off-hand.
The East India Company, for example, was first
chartered in 1599 under the name of the "Governor
and Company of Merchants of London Trading with
the East Indies." It had a governor and twenty-four
directors. The directors were to elect the governor
and all other oflficers, make laws, punish crimes, and so
forth. It was, nevertheless, merely a trading company,
with a touch of political power, just like the companies
that founded the American colonies which we have been
discussing in the previous chapters. Yet out of it has
grown, by slow degrees, the present vast and completed
political government of India, All this growth was, so
to speak, out of itself, like the growth of the trading
companies of the American colonies. In 1661 we find
Charles II. giving it the high governmental power of
making peace or war with any power not Christian, of
erecting forts, and exercising criminal and civil juris-
diction through judges, just as we find these same powers
gradually given to the American colonies in the colonial
charters. In 1677 it was allowed to establish a mint
and coin money. And so it went on, adding huge ter-
ritorial possessions to the British Empire, and becoming
more and more of a political power, and yet remaining
in form the same old trading corporation, until 1833.
Even then, when its trading attributes were mostly
taken from it and all its property was vested in the
93
Evolution of the Constitution
Crown, the forms of the trading charter still remained,
and it governed the vast properties and possessions as
trustee for the Crown. It was slowly transformed, not
to suit a theory or to imitate anything, but to suit
changing circumstances, until, in 1858, it became a
recognized department of the British government with
one of the secretaries of state in control, instead of the
old trading board with its committees on finance, on
politics and war, on judicial and legislative interests,
and the famous secret committee.
But let us return to our own Constitution and be defi-
nite and accurate about it, and accuracy and definite-
ness is more than can be said for the advocates of the
theory that it was copied from the British government
Let us examine its provisions closely, to see what they
resemble.
We will begin with the powers of the President, be-
cause they are the most simple and striking, and it is
said that they were copied from the powers of the British
king. Blackstone, in his commentaries oi) the English
law, has five or six chapters devoted to the powers of
the king, and it is said that the convention of 1787
selected from these the powers of our President Mr.
Bryce, in his " American Commonwealth," declares that,
being guided by the description of the royal power in
Blackstone, the framers of our Constitution were misled
into taking rather ancient kingly powers for the Presi-
dent because the description in Blackstone gave the
theory of royal power rather than its practice, and its
theory was many years behind its practice.
When we read those chapters in Blackstone we find
94
English Sources
most of them taken up with a description of all sorts
of prerogatives and powers, the king's dignity, his
sovereignty and pre-eminence, his perpetuity, his privy
council, his right to appoint ports and havens, wharfs
and quays, public markets and fairs, to regulate weights
and measures, to grant precedence, and to prevent sub-
jects from leaving the kingdom, together with others
which were obviously not taken for the American
President The only powers which could by any possi-
bility have been copied are a few mentioned in the
middle of Chapter VIL, Book I, such as the veto
power, the right to send and receive ambassadors, make
treaties, and declare peace and war.
Let us take the first of these, the veto power, — cer-
tainly a very important one. The veto power has since
then been taken away from the English king. But at
the time Blackstone wrote the king was said to have
an absolute veto on all the bills passed by Parliament
He could, whenever he pleased, prevent their becoming
laws, and Parliament was helpless.
If the Convention of 1787 had given the President an
absolute veto, it might possibly be Sciid that they took
it from the king. But they gave the President a modified
veto, — a veto which he could maintain only when there
were less than two-thirds of both houses of Congress
against him ; a sort of veto utterly unknown in England.
The history of this modified veto has been shown
from time to time in the previous chapters. The colo-
nists had been very familiar with the absolute veto power.
The governors of some of the colonies had it, and in
others the king had the right to annul absolutely any
95
Evolution of the Constitution
laws within a certain number of years after their passage.
All sorts of trouble and contentions followed from this
absolute veto, and the colonists were not admirers of it
Only a few of the constitutions of i "Jld gave it to the
governor, and it was not until the constitution of New
York suggested the plan of a modified veto that it be-
came in any degree acceptable, and New York's sugges-
tion was adopted almost word for word in the National
Constitution.
So also the right to send ambassadors was an absolute
right in the British Crown, which it shared with no other
department. But in the American Constitution we find
that the President cannot appoint ambassadors except
with the advice and consent of the Senate. The Crown
had the absolute right to make treaties, but the Presi-
dent can make them only with the advice and consent
of two-thirds of the Senate. The pardoning power was
absolute in the Crown, but the President cannot pardon
in cases of impeachment The king had the power to
declare peace or war, but this power is given to Con-
gress, and not to the President ; and the power to grant
letters of marque, which was in the king, was given to
Congress alone.
If the framers of our Constitution took the President's
powers from the powers of the British Crown as de-
scribed in Blackstone, they were great bunglers, and
could hardly have been able to read the English lan-
guage.
The only power possessed by the President which is
like any of the powers of the Crown is his command
of the army and navy. But the king's chief command
96
English Sources
had annexed to it, and as a part of it, the right to
" raise and regulate" armies and navies ; and this, in the
American Constitution, was given to Congress. The
President's power, which is described in the words
"shall be commander-in-chief of the army and navy,"
was, moreover, evidently derived from the constitutions
of 1776 and the colonial governors. The governors
had had this power for more than a hundred years, and
they were often called "Commanders-in-Chief," in the
words of the National Constitution.
The President's message has been supposed to have
been taken from the English king's address from the
throne on opening Parliament, and perhaps there is
nowadays a slight resemblance, because the President
usually sends his message at the opening of Congress.
But the language of the Constitution which describes
the message makes it a mere report on the condition
of the country to be given at any time, very much like
the report of a head officer of any organization : " He
shall, from time to time, give to Congress information
of the state of the Union, and recommend to their con-
sideration such measures as he shall judge necessary
and expedient" This was taken, as already shown,
from the New York constitution of 1777, and had ap-
peared for the first time as far back as the New Hamp-
shire commission of 1680.
The President was also given powers which do not
even in the slightest degree resemble any of the powers
of the king. He could require the opinion, in writing,
of the principal officer in each of the executive depart-
ments upon any subject relating to the duties of their
7 97
Evolution of the Constitution
respective offices. His powers of appointing to public
office with the consent of the Senate, of filling vacancies
in the recess of the Senate, and of appointing to inferior
offices without the consent of the Senate if Congress
should give him the power, are also so totally unlike
any similar power of the English king that it is impos-
sible to suppose any resemblance or imitation.
The simple phrase, already noticed, which sums up
the most important of the President's duties, " He shall
take care that the laws be faithfully executed," had no
origin in England, but first appeared, as already shown,
in one of the Pennsylvania colonial constitutions, and was
repeated with variations in the constitutions of 1776.
The English king had the sole power of assembling
Parliament by writ. But the President can convene
both houses only "on extraordinary occasions." He
cannot call them except on these extraordinary occa-
sions, and he has no power to prorogue or adjourn
them when met except when they disagree as to the
time of their adjournment, and then " he may adjourn
them to such time as he shall think proper." This
arrangement was the result of long experience in deal-
ing with colonial governors.
In some of the colonies the royal governors had the
power to adjourn the popular assemblies, and when they
were displeased with an assembly, or wanted to force
something from it, they would adjourn it and prevent
its meeting again until it. gave what was wanted. It
was a most oppressive use of power, and the Pennsyl-
vanians whose governors had not this privilege con-
sidered themselves very fortunate.
98
English Sources
The statement in the National Constitution which
says that the President " shall commission all the officers
of the United States" was not taken from any power of
Blackstone's enumeration, but was the result of expe-
rience, and was a brief and sensible way of putting what
had been verbosely and circuitously stated in many of
the 1776 constitutions. Some of them gave in detail
what officers their governors should commission. Often
in each clause where the officers were created it was
stated that the governor should commission them ; and
sometimes there were officers who were apparently not
commissioned by the governor or his council. Some
of the 1776 constitutions, however, had a simple clause
that all their officers were to be commissioned by the
governor. The framers of the National Constitution
adopted this evidently clear and easy form, and it is a
good illustration of the way in which the national docu-
ment was developed into its rather remarkable clearness
and simplicity out of the jumbled and often very care-
less expressions of the instruments that preceded it
The attempt to show resemblances between the
American Congress and the British Parliament is as
weak as the attempt to derive the President's powers
from those of the king. The opening passages of the
Constitution state that the lower house is to be com-
posed of members chosen every second year by the
people, and farther on we see that both houses shall
assemble at least once in every year, beginning on the
first Monday in December. The President has no con-
trol whatever in dissolving Congress, or in calling them
together, except to adjourn the two houses when they
• 99
Evolution of the Constitution
disagree as to the time of adjournment and to call them
for a special emergency. This at the very start was
totally unlike the British House of Commons, which
was not elected at definite periods, but stayed in exist-
ence until dissolved by the king ; and the reason for
this difference was that our people had found in colo-
nial times that great inconvenience ensued whenever the
governor could in any way control the popular assem-
bly. The fixing of a definite period for the election
of Congressmen was intended to protect the popular
assembly, by taking it entirely out of the control of the
President, and, so far from being an imitation of the
British Constitution, was intended to avoid what was
supposed to be a defect in it.
Again, we find in almost the next clause that the
members of the House of Representatives are to be ap-
portioned according to population, giving one repre-
sentative to every thirty thousand of the people. This
was also the very reverse of the English Constitution,
which allowed members of the House of Commons to
be elected by pocket boroughs, by colleges, and in all
sorts of ways, without any regard to an even distribution
among the people. Each Congressman was also obliged
to be an inhabitant of the State in which he should be
chosen. But in England there was no rule as to resi-
dence, and a member of the House of Commons might
reside in one county of England and be elected from
any other county.
When we come to the Senate it is as unlike the
House of Lords as is possible. It is not hereditary.
Its members do not hold office for life, but for six
English Sources
years, and it is constituted expressly by localities, each
State being represented by two senators who must be
inhabitants of that State. In forming the Senate, the
framers of the Constitution developed it, as we have
already seen, out of their own experience in the con-
stitutions of 1 776 and in colonial times, where we saw
the second house of legislature, or senate, gradually
evolved out of the governor's council. The only pro-
vision which shows a resemblance to the House of
Lords is that the Senate has the right to try impeach-
ments, and this is also the result of experience, and not
imitation ; for the constitutions of 1776 made all sorts
of arrangements for courts to try impeachments, and
the placing of this power in the upper house was finally
decided upon after many experiments.
The Senate was also intended to preserve the balance
of power among the States and prevent the oppression
of the small States by the larger ones. John Dickinson
was in the convention as a representative from Delaware,
a very small State, and he had much influence in shaping
this part of the Senate's functions. Delaware had been
partially annexed to Pennsylvania before the Revolu-
tion. The two provinces had the same governor, but
different legislatures. At first they had been under the
same governor and the same legislature, and it cost
Delaware somewhat of a struggle to get an independent
legislature. She knew by experience how easily a small
State could be unduly controlled or ignored, and her
eminent representative naturally became the champion
of the weaker commonwealths. This championship
resulted not only in the peculiar constitution of the
Evolution of the Constitution
Senate, but also in that clause which says, "No new
State shall be formed or created within the jurisdiction
of any other State, nor any State be formed by the
junction of two or more States, or parts of States, with-
out the consent of the legislatures of the States con-
cerned, as well as of the Congress." All this was, of
course, native development
There is also a clause in the part of the Constitution
devoted to the legislative department which has not
often been noticed. It provides that a majority of each
house shall constitute a quorum, but a smaller number
may adjourn from day to day and may be authorized to
compel the attendance of absent members. This was
doubtless suggested by what had happened in Pennsyl-
vania. The old Quaker assembly under Penn's consti-
tution of 1 70 1 had resisted the movement to make a
new constitution in i jy^. They had been defeated in
the end by members absenting themselves so that no
quorum could assemble. Less than a quorum assem-
bled day after day, and, having no power to compel the
attendance of other members, they gradually became a
laughing-stock for their inefficiency, and the legislative
body that had ruled the colony for nearly one hundred
years became extinct This event was fresh in the
minds of the framers of the National Constitution, and
they took care that nothing similar should happen to
the Federal government
Other characteristics of the American Congress might
also be noted. The powers to determine their own rules
of proceeding, to punish members for disorderly be-
havior, to expel a member, to keep a journal, not to
English Sources
adjourn for more than three days without each other's
consent, privilege from arrest, and other matters, are
more or less characteristic of all legislatures the world
over. Some of these provisions could have been taken
from England, but several of them, as we have seen,
were developed out of colonial experience.
The clause which forbids a senator or a representative
from holding any civil office which shall have been cre-
ated or the emoluments whereof shall have been in-
creased during the time for which he was elected was
an obviously good provision which did not have to be
copied from any country ; and the other provision, that
no person holding any office under the United States
should be a member of either house during his continu-
ance in office, had been repeated in various forms in the
constitutions of 1776, and was a necessary part of the
doctrine that the departments of government should be
kept distinct The clause requiring money-bills to
originate in the lower house was, of course, an old
English idea, but it had been worked out and contended
for in the colonial governments and in the Revolutionary
constitutions.
Finally, Congress is given only a limited power. Its
rights and duties are enumerated, and it cannot go be-
yond this enumeration ; but the power of the British
Parliament was general and had no limits fixed to it
This attribute alone would destroy all possibility of re-
semblance or imitation. It was tlie result of the pecu-
liar situation of the countr}', — a federation of States
coming together in a Union, to which they intended
to delegate only a portion of their sovereignty.
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Evolution of the Constitution
When we come to the federalism of the Constitu-
tion, the things forbidden to the individual States, —
making treaties with foreign powers, granting letters of
marque, coining money, issuing bills of credit, passing
bills of attainder, ex post facto laws, and laws impairing
the obligation of contracts, — there could not of course
be any possibility of imitation.
104
CHAPTER V.
THE EVOLUTION FROM THE COLONIAL CHARTERS SHOWN
IN DETAIL.
I. Absolutism.
We are not accustomed to associate despotism with
our ideas of the origin of government in the United
States. But government began with us in despotism,
as it has begun with other nations. The first American
charter gave Sir Walter Raleigh absolute control for six
years of any colony he should establish, and this not
because the persons who drew the charter were mon-
archists or believed in absolutism as against liberty, but
because, in the absence of all experience in founding
or managing colonies, this gift of absolute control was
thought to be the best way of encouraging some one to
take the risks of colonizing.
It was a matter of business, the most convenient way
that could be devised at the time ; and what was appar-
endy very despotic power was given, as it commonly
is in untried and dangerous enterprises, without any
intention of establishing a theory or principle. Des-
potism has begun in the infancy of many nations in
a similar way, as the best means of meeting present
difficulties.
Twenty-two years afterwards, in the Virginia charter
of 1606, the absolutism was modified in another attempt
to meet the requirements of circumstances. The law-
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Evolution of the Constitution
making power was given to the king, and the adminis-
tration of any laws he should devise was given to coun-
cils appointed by him. This was absolutism, but not
so crude and simple as in Sir Walter Raleigh's charter.
It was, however, so far as practical government was con-
cerned, the last of absolutism in America, for the next
document, the Virginia charter of 1609, allowed a sort
of representative government, and after that no govern-
ment that could be called absolute was ever put in force.
Absolutism, however, survived in a merely formal way
for a long time afterguards. The New England charter
of 1620 created a close corporation which could make
any laws it pleased for the government of its territory.
But this corporation used this absolute power, as already
shown, to establish a very free representative system of
government for New England : so that, in this instance,
the absolutism quickly produced republicanism. Nor
was the very liberal power given to John Mason, the pro-
prietor of New Hampshire, ever successfully enforced
in practice.
The Maryland charter of 1632 also continued abso-
lutism as an obsolete form, and, although requiring
the consent of the freemen for all laws, allowed Lord
Baltimore to enact laws in emergencies when there was
no time for calling a meeting of the assembly. This
same provision was repeated in the Carolina charters of
1663 and 1665, and in the Pennsylvania charter of 1681,
which were all, like that of Maryland, proprietary char-
ters. But the absolutism of these rather curious pro-
visions was never enforced, and any attempt to enforce it
would have brought on a popular uprising. It remained
106
Evolution from the Charters
as a mere survival of the past, like a part or faculty of a
species of animal which has outlived its ancient useful-
ness.
"We for vs, our heires and successors, are likewise pleased
and contented, and by these presents do giue and graunt to the
said Walter Raleigh, his heires and assignes for ever, that hee
and they, and euery or any of them, shall and may from time to
time for euer hereafter, within the said mentioned remote landes
and Countreis in the way by the seas thither, and from thence,
haue full and meere power and authoritie to correct, punish, par-
don, gouerne, and rule by their and euery or any of their good
discretions and poUicies, as well in causes capital, or criminall, as
ciuil, both marine and other, . . . within 6. yeeres next ensuing
the date hereof, according to such statutes, lawes and ordinances,
as shall bee by him the saide Walter Raleigh, his heires and
assignes, and euery or any of them deuised, or established."
(Sir Walter Raleigh's Charter of 1584.)
"And we do also ordain, establish, and agree, for Us, our
Heirs, and Successors, that each of the said Colonies shall have
a Council, which shall govern and order all Matters and Causes,
which shall arise, grow, or happen, to or within the same several
Colonies, according to such Laws, Ordinances, and Instructions,
as shall be, in that behalf, given and signed with Our Hand or
Sign Manual, and pass under the Privy Seal of our Realm of
England." (Virginia Charter of 1606.)
"Wee, by the Advice of the Lords and others of the said
priuie Councill, do by these Presents ordaine, constitute, limett,
and appoint, that from henceforth, there shall be for ever here-
after, in our Towne of Plymouth, in the County of Devon, one
Body politicque and corporate, which shall have perpetuall Suc-
cession, which shall consist of the Number of fourtie Persons,
and no more, which shall be, and shall be called and knowne
by the Name the Councill established at Plymouth, in the County
of Devon for the planting, ruling, ordering, and governing of
New-England, in America. . . . and also to make, ordaine, and
107
Evolution of the Constitution
establish all Manner of Orders, Laws, Directions, Instructions,
Forms, and Ceremonies of Government and Magistracy fitt and
necessary for and concerning the Government of the said Collony
and plantation." (Charter of New England of 1620.)
"And the said Captain John Mason doth further covenant for
him, his Heirs and Assigns, that he will establish such Govern-
ment in the said portion of Lands and Islands granted unto him,
and the same will from time to time continue, as shall be agree-
ble as near as may be to the Laws and Customs of the Realm of
England ; and if he shall be charged at any time to have neglected
his duty therein, that then he will reform the same, according to
the Discretion of the President and Council, or in Default thereof,
it shall be lawful for any of the aggrieved Inhabitants or Planters,
being Tenants upon the said Lands, to appeal to the chief Court
of Justice of the said president and Council." (Grant of New
Hampshire of 1629.)
" And forasmuch, as in the government of so great a province,
sudden accidents do often happen, whereunto it will be necessary
to apply a remedy, before the freeholders of the said province,
their delegates or deputies, can be assembled to the making of
laws, . . . therefore for the better government of the said prov-
ince, we will and ordain and by these presents for us, our heirs
and successors do grant unto the said now Lord Baltimore and his
heirs, that the said now Lord Baltimore and his heirs, by them-
selves or by their magistrates and officers in that behalf duly to be
ordained as aforesaid may make and constitute fit and wholesome
ordinances, from time to time, within the said province, to be
kept and observed as well for the preservation of the peace, as for
the better government of the people there inhabiting, and so as
the said ordinances be not extended, in any sort to bind, charge,
or take away the right or interest of any person or persons of or
in their life, member, freehold, goods or chattels." (Maryland
Charter of 1632.)
"With power of judicature [to John Mason] in all causes and
matters whatsoever, as well criminall, capitall, and civil, ariseing
or which may hereafter arise within the lymitts, bounds, and pre-
108
Evolution from the Charters
cincts aforesayd, to bee exercised, and executed according to the
laws of England as neere as may bee, by the said capt. John
Mason, his heyers and assignes, or his or their Deputys, Leeften-
ants. Judges, Stewards, or Officers thereunto by him or them as-
signed, deputed or appoynted from tyme to tyme, . . . saveing
and always reserving vnto the said Counsell and their successors,
power to receive, heare and determine all and singular appeale
and apeales of every person and persons whatsoever, dwelling or
inhabiting within the said Territorys and Yslands or any part
thereof, soe granted as aforesaid, of and from all judgements, and
sentences whatsoever given within the said lands and territory
aforesaid." (Grant of New Hampshire of 1635.)
The provision given above from the Maryland charter of 1632
is substantially repeated in the grant of Maine of 1639.
The Carolina charter of 1663 repeats substantially the pro-
vision given above from the Maryland charter of 1632,
The grant to the Duke of York of 1664 repeats substantially
the provision given above from Sir Walter Raleigh's charter of
1584.
The Carolina charter of 1665 repeats substantially the pro-
vision given above from the Maryland charter of 1632.
The grant to the Duke of York of 1674 repeats substantially
the provision given above from Sir Walter Raleigh's charter of
1584.
The Pennsylvania charter of 1 68 1 repeats the provision given
above from the Maryland charter of 1632.
2. Separate Departments.
In despotic governments the three great powers,
legislative, executive, and judicial, are exercised by the
same person. This is the cause of the despotism and
the means by which the government remains despotic.
As the three powers gradually become separated and
are controlled by different persons, the government ad-
vances in freedom.
109
Evolution of the Constitution.
The first American government — Sir Walter Raleigh's
charter of 1584 — was thoroughly despotic, and Sir
Walter exercised all three of the powers. In the next
government — the Virginia charter of 1606 — the law-
making power was given to the king, and the adminis-
tration of the laws to councils appointed by him. Here
there was a partial separation of two of the depart-
ments ; but the separation was not very distinct, for the
king appointed the executive body which was to ad-
minister the laws he made, and this executive body,
besides administering the laws, may have also acted as
a judiciary department But still it was a beginning of
separateness.
In the Virginia charter of 1609 the laws were made
by a council resident in England, which council was
elected by a majority vote of the members of the cor-
poration ; and this same council appointed the gov-
ernor and other officers. Here we have a legislative
body elected, so to speak, by the people, and an execu-
tive department appointed by the legislature. But there
is, as yet, no separate judicial department, and pre-
sumably the power of that department is to be exercised
by the executive.
Apparently no attempt was made in any of the colo-
nial governments to establish a separate judicial depart-
ment until the Mar>'land charter of 1632, which gives
Lord Baltimore express power to establish courts of
justice and provide everything that relates thereto.
But six years afterwards, in the fundamental orders of
Connecticut of 1638, the judicial power is given to the
magistrates, who were in effect a governor's council and
Evolution from the Charters
part of the executive : so that the advance of the Mary-
land charter is checked, and colonial government again
consists of only two departments, legislative and execu-
tive, with the executive exercising the powers of a ju-
dicial department
In 1662, however, the Connecticut charter gave ex-
press power to the general assembly to establish separate
courts, both civil and criminal, and from that time, with
the exception of New Hampshire, the colonial govern-
ments seem to have had the three departments, legisla-
tive, executive, and judicial.
There was still a certain amount of confusion among
them. The governor's council, as we have seen, often
sat with the assembly, and in this way the executive
was too much mingled with the legislative. The grad-
ual evolution of the governor's council into an upper
house of the legislature was constantly remedying this
defect ; but in many other ways the confusion lingered.
There was a tendency to give the governor's council
judicial duties to perform, as in the Massachusetts char-
ter of 1 69 1, and, although the three powers were usually
separately created, there was no express command pro-
hibiting an individual from holding two inconsistent
offices. A judge might be elected to the legislature,
and there were no express words in the charter or con-
stitution to compel him to resign his judgeship. Simi-
larly, a member of the legislature might hold some
executive office or be an officer in the militia.
The first appearance of any conscious attempt to
keep the powers more distinctly separated is in the
Georgia charter of 1732, which provides that no person
Evolution of the Constitution
holding an office of profit under the corporation shall
be a member of the corporation. The corporation, or
members of the company, under this charter, made the
laws and appointed the council which carried on the
company's executive business ; so that the corporation
was, in effect, the legislative department ; and the pro-
vision for more distinct separateness meant that no
member of the legislative department should hold any
office in the executive department, or, presumably, in
the judicial department, if there was one.
Twenty-two years afterward, in Hutchinson's plan
of union of 1754, we find a similar provision, to the
effect that no member of the council should be chosen
to any office, civil or military. After this no more
written forms of government appeared until the consti-
tutions of 1776, and in the second one of these, the
South Carolina constitution, we find a somewhat elabo-
rate provision declaring what offices are inconsistent
with each other and cannot be held by the same person.
In Virginia's constitution, which came next, the gen-
eral principle is laid down for the first time that " the
legislative, executive, and judiciary departments shall
be separate and distinct, so that no one of them exercise
the powers properly belonging tq the others, nor shall
any person exercise the powers of more than one of
them at the same time."
It is curious, however, as showing the old condition
of things still lingering, that at the close of this general
principle in the Virginia constitution an exception is
made allowing the justices of the county courts to be
eligible to either house of assembly.
Evolution from the Charters
But the movement in favor of more distinct separate-
ness was now well under way, and, as we pass along
among the constitutions of 1776, we find nearly every
one of them either laying down the broad principle first
declared by Virginia or giving in detail the offices which
were inconsistent and could not be held by the same
person ; and in some of them both the principle and the
detailed description of the inconsistent offices are given.
By the time the National Constitution was framed, the
doctrine of separate departments was thoroughly under-
stood. The Constitution describes each department and
assigns its duties with a clearness that leaves no doubt
of their distinctness, and, to show what offices are in-
consistent, contents itself with a simple phrase forbidding
any person holding an office under the United States
to be a member of either house during his continuance
in office.
The slow growth of the principle of separate depart-
ments during two hundred years — from the confused
despotism of Sir Walter Raleigh's charter of 1 584 to the
enlightened distinctness of the Constitution, which makes
each department almost independent — is an excellent
illustration of the way in which our constitutional ideas
have grown naturally on our own soil, without that imi-
tation of foreign forms upon which some writers have
insisted.
At a time when the departments of our colonial gov-
ernments were much confused, the departments of the
British government were quite distinct, and our consti-
tution-makers could have imitated that distinctness with
a stroke of the pen. But they were not looking for
8 "3
Evolution of the Constitution
anything to imitate, and they were not constructing
theories or ideals. They were constructing practical
governments suited to the conditions of time and place,
and, among primitive conditions in a new country, a
government with all the departments fused into one,
or into two only slightly separated, is often the best that
can be devised.
The first and original of all governments is the govern-
ment of a father over the family, which, so far as a family
is concerned, could not be improved by any doctrine of
divided authority ; and for certain simple enterprises
the one-man power is still the best. The colonizers of
America did not construct the single authority of Sir
Walter Raleigh's charter or the very slighdy separated
departments of succeeding charters because they were
ignorant of the principle of distinct departments ; they
did it because they were working out the great prob-
lem of the continent according to its needs. They
were simple when their conditions were simple, and
they became elaborate as the requirements became
elaborate. Our present National Constitution would
have been as unsuited and ridiculous to the America
of 1584 as Sir Walter's charter of that year would
be unsuited and ridiculous to the United States of
to-day.
It is a common assertion that the doctrine of separate
departments was first taught to us, as well as to the
rest of the world, by Montesquieu's "Spirit of Laws,"
which appeared in 1 748. But the colonial governments
had begun to separate their departments long before
that year, and separate departments were to be found
114
Evolution from the Charters
in the British government and in other governments on
the continent of Europe. When we come to read the
chapter in Montesquieu which treats of the subject
(Book XL, Chap. VI.), we find that he makes no pre-
tence of having discovered anything, but merely com-
ments on the separated departments of the governments
of Europe, and praises the British government for having
advanced farther in this respect than the others. Mon-
tesquieu doubtless emphasized the importance of sepa-
rated departments, and in that sense helped and en-
couraged their development ; but he did nothing more,
and professed to do nothing more.
The quotations from the charters and constitutions
which show the development in this section, being too
long to give in full, are summarized, a method which
will be followed in other sections when the length of
the quotations renders it necessary :
No person holding an office of profit under the corporation to
be a member of the corporation. (Georgia Charter of 1732.)
No member of council to hold any civil or military office.
(Hutchinson's Plan, 1754.)
Certain inconsistent offices not to be held by the same person.
(South Carolina Constitution of 1776.)
The principle laid down that the three departments should be
separate and distinct. (Virginia Constitution of 1776.)
Certain inconsistent offices not to be held by the same person.
(New Jersey Constitution of 1776.)
Certain inconsistent offices not to be held by the same person.
(Delaware Constitution of 1776.)
Certain inconsistent offices not to be held by the same person.
(Pennsylvania Constitution of 1776.)
The principle laid down that the three departments should be
separate and distinct ; and, certain inconsistent offices not to be
"5
Evolution of the Constitution
held by the same person. (Maryland Declaration of Rights and
Constitution of 1776.)
The principle laid down that the three departments should be
separate and distinct. (North Carolina Declaration of Rights of
1776.)
Certain inconsistent offices not to be held by the same person.
(North Carolina Constitution of 1776.)
The principle laid down that the three departments should be
separate and distinct ; and, certain inconsistent offices not to be
held by the same person. (Georgia Constitution of 1777.)
Certain inconsistent offices not to be held by the same person.
(New York Constitution of 1777.)
Certain inconsistent offices not to be held by the same person.
(Rejected Constitution of Massachusetts of 1778.)
Certain inconsistent offices not to be held by the same person.
(South Carolina Constitution of 1778.)
Certain inconsistent offices not to be held by the same person.
(Articles of Confederation, 1778.)
Certain inconsistent offices not to be held by the same person.
(Drayton's Articles of Confederation, 1778.)
Certain inconsistent offices not to be held by the same person.
(Rejected Constitution of New Hampshire of 1778.)
The principle laid down that the three departments should be
separate and distinct ; and, certain inconsistent offices not to be
held by the same person. (Massachusetts Constitution of 1780.)
The principle laid down that the three departments should be
separate and distinct ; and, certain inconsistent offices not to be
held by the same person. (New Hampshire Constitution of
1784.)
The principle laid down that the three departments should be
separate and distinct ; and, certain inconsistent offices not to be
held by the same person. (Vermont Constitution of 1786.)
Members of the national legislature to be ineligible to other
offices under the national government, except those belonging
peculiarly to the functions of the legislature. (Randolph's Plan
of 1787.)
Members of the national legislature to be ineligible to other
116
Evolution from the Charters
offices under the national government. (Pinckney's Plan of
1787.)
The Constitution prohibits members of Congress from holding
any other office under the United States. (The Constitution.)
3. The House of Representatives.
The legislative, or law-making, power is with us the
foundation of government ; for it is in this body that
the will of the people is first shown and most completely
expressed. The first article of the National Constitution,
and the first words of that article, are devoted to de-
scribing the legislature, and our modem State constitu-
tions usually begin in the same way.
This conception was reached by a process of evolution.
The colonial charters were apt to begin by creating a
governor and describing the executive department, and
it is evident on reading them that they regarded this
part of government as the foundation and the legisla-
ture as secondary and a mere check on the governor
and his council, or as a privilege graciously allowed the
people. But in the constitutions of 1 776 we see the
legislature assuming the modem position and impor-
tance which it now has without the slightest question.
Our legislative power, as now developed, consists of
two bodies, — the Senate and the House of Representa-
tives,— and of these the Senate is always spoken of as
the upper house, and is regarded as the greater in
dignity. But the lower house is the greater in power
and importance, because it is more directly representa-
tive of the people and holds the purse-strings ; that is
to say, has the sole power of originating money-bills.
It has sometimes been called the first house, although
»'7
Evolution of the Constitution
the Senate is called the upper house, and it is rightly-
called first, because it was developed first
As the summary shows, its roots started in the Virginia
charter of 1609, and it succeeded to the absolutism of
the two previous charters, — the Virginia charter of 1 606
and Sir Walter Raleigh's of 1584. It began in that
Virginia charter of 1609 in the simple form of a council
which was to be elected by the members of a corpora-
tion and make the laws for the colony. This was the
real beginning of American representative government
The power of the people, on which the great fabric of
our republic is now reared, was first recognized by giving
power to all the members of a corporation which owned
a colony. From this it was a natural step to transfer
the power from the members or stockholders of the
corporation to the inhabitants or people of the colony.
This step we find gradually made in the next three
charters. The Virginia charter of 1611-12 gives the
power to all the members of the company to make the
laws in a mass-meeting. The Massachusetts charter of
1629 gives the power in the same way, but in the Mary-
land charter of 1632 the law-making power is given for
the first time, not to the members or stockholders of a
corporation, but to the inhabitants or people of the
colony, and they are allowed to exercise it either in
mass-meeting or, if they become too numerous for that,
through delegates.
It is certainly rather strange that we should have
developed our great governmental power, the power
of the people and their legislature, out of the forms
of a corporation. But our people have always made
118
Evolution from the Charters
great use of corporations, and we have now developed
their use in business enterprises far beyond anything
known in other countries. American corporation law
has become, like our patent law, a great department of
jurisprudence peculiar to the United States. Indeed,
we have pushed the development of corporations so far
that their enormous power for evil or good has become
a political question.
The Maryland charter of 1632, as we have said, con-
tained a suggestion that the people of the colony could,
if they chose, exercise the law-making power through
delegates instead of in a mass-meeting. The next
document, the fundamental orders of Connecticut of
1638, carried this suggestion a step farther, and pro-
vided that the people should not exercise the law-making
power in mass-meeting, but should always elect deputies,
which, with the magistrates or governor's council, should
constitute a body called the general court.
Thus, in the year 1638 we have a regular represen-
tative legislature established, called the general court,
and consisting of the governor, the governor's council,
and the delegates elected by the people. This remained
the form of the legislative power all through the colo-
nial period. We find it repeated in the Connecticut
charter of 1662, the Rhode Island charter of 1663, and
the Concessions of East Jersey of 1665. In 1669
Locke's curious constitution of Carolina carries out the
same idea of deputies elected by the people ; but in-
stead of the governor and the governor's council he
joins with the deputies several orders of the nobility,
and calls the whole a parliament .
119
Evolution of the Constitution
In the Concessions of West Jersey of 1677 the same
idea of an assembly elected by the people is continued,
with no governor or governor's council added to it
The commission of New Hampshire of 1680 also has
an elective assembly. The Pennsylvania frame of April
2, 1683, introduces a reaction by taking away from this
now well-established assembly the right to originate
laws and giving this originating right to an upper house.
But in the Massachusetts charter of 1691 the form of
governor, governor's council, and deputies of the peo-
ple appears again ; and in the frame of 1696 Pennsyl-
vania restores to her assembly the right to originate
laws. The Georgia charter of 1732 produces an ap-
parent reaction by giving the law-making power to a
corporation. But this, as already shown, was the result
of very peculiar circumstances, and need not be con-
sidered.
Coming to the constitutions of 1776, we find them
accepting the old colonial assembly as their principal
legislative body ; and in the first of these constitutions,
that of New Hampshire, it is called the house of repre-
sentatives, the name afterwards adopted for it in the
National Constitution. As we pass on through these
constitutions of 1776 we find it appearing in them all,
— sometimes called the assembly, sometimes the house
of delegates, but, as we near the end, more and more
often called the house of representatives, until, in the
simplest language of only a few lines, the old colonial
assembly, over which the charters were often so wordy,
becomes the House of Representatives of Congress in
the National Constitution.
Evolution from the Charters
The council resident in England to be elected by a majority
vote of the company, and said council to make the laws. (Vir-
ginia Charter of 1609.)
The treasurer and the whole company to meet four times a
year to make the laws. (Virginia Charter of 1611-12.)
The law-making power given to the assistants and the whole
body of the freemen of the company. (Massachusetts Charter
of 1629.)
The law-making power given to the proprietor and the freemen
or their delegates. (Maryland Charter of 1632.)
The governor, the magistrates, and the deputies elected by the
towns to constitute a general court to make the laws. (Funda-
mental Orders of Connecticut, 1638.)
In 1643 the inhabitants of Rhode Island were given a patent
which allowed them to rule themselves by such form of govern-
ment as the majority of them should find most suitable to their
condition.
The governor, deputy-governor, assistants, and the deputies
from the towns to constitute a general assembly to make the laws.
(Connecticut Charter of 1662.)
The above provision is repeated in the Rhode Island charter
of 1663.
The Carolina charter of 1663 copies the provision given above
from the Maryland charter of 1632.
The governor, council, and deputies of the people to constitute
a general assembly to make the laws. (Concessions of East Jer-
sey, 1665.)
The Carolina charter of 1665 copies the provision given above
from the Maryland charter of 1632.
Three divisions of the nobility and the deputies of the free-
holders to constitute a parliament to make the laws. (Locke's
CaroHna Constitution of 1669.)
One hundred deputies elected by the people to constitute the
general assembly. (Concessions of West Jersey of 1677.)
The president and council to decide how many deputies elected
by the people shall constitute the general assembly. (Commis-
sion for New Hampshire of 1680.)
121
Evolution of the Constitution
The Pennsylvania charter of 1681 copies the provision g^ven
above from the Maryland charter of 1632.
The general assembly given power only to accept or reject the
bills of the upper house or make suggestions for their amend-
ment. (Pennsylvania Frame of April 2, 1683.)
The above provision is repeated in the Pennsylvania Frame of
1683, with some changes as to the number of members of the
assembly and the time of meeting.
The governor, assistants, and the deputies of the towns to con-
stitute the general assembly. (Massachusetts Charter of 1691,)
The general assembly of Pennsylvania allowed to originate
bills. (Pennsylvania Frame of 1696.)
Deputies of the people to constitute an assembly. (Pennsyl-
vania Charter of Privileges of 1701.)
The law-making power given to the general meeting of the
corporation. (Charter of Georgia of 1732.)
The lower branch of the legislature elected by the people to
be called the house of representatives. (New Hampshire Consti-
tution of 1776.)
The lower branch of the legislature to consist of representa-
tives of the people. (South Carolina Constitution of 1776.)
The lower branch of the legislature, called the house of dele-
gates, elected by the people. (Virginia Constitution of 1776.)
The lower house to consist of representatives of the people.
(New Jersey Constitution of 1776.)
The lower house called the house of assembly. (Delaware
Constitution of 1776.)
A single legislative body called the house of representatives
elected by the people. (Pennsylvania Constitution of 1776.)
The lower house called the house of delegates. (Maryland
Constitution of 1776.)
The lower house called the house of commons. (North Caro-
lina Constitution of 1776.)
A single legislative body to consist of representatives of the
people. (Georgia Constitution of 1777.)
The lower house called the assembly and composed of repre-
sentatives of the people. (New York Constitution of 1777.)
Evolution from the Charters
The Vermont constitution of 1777 repeats the provision given
above from the Pennsylvania constitution of 1776.
The lower house to be called the house of representatives, and
to consist of one from each town. (Rejected Constitution of Mas-
sachusetts of 1778.)
The lower house, to be called the house of representatives, to
be chosen every second year. (South Carolina Constitution of
1778.)
The house of representatives to consist of deputies from the
towns. (Rejected Constitution of New Hampshire of 1778.)
The lower house to consist of representatives from the towns.
(Massachusetts Constitution of 1780.)
The above provision from the Massachusetts constitution of
1780 is repeated in the New Hampshire constitution of 1784.
A single legislative body, called the house of representatives,
to be chosen annually. (Vermont Constitution of 1786.)
Suggestion of a legislature, to be called the first branch of the
national legislature, to be composed of representatives of the
people. (Randolph's Plan, 1787.)
Suggestion of a national legislative body, chosen by the people
of the several States, to be called the house of delegates. (Pinck-
ney's Plan, 1787.)
The House of Representatives to be elected by the people
every second year. (The Constitution.)
4. The Senate.
The line of development which led to the House of
Representatives began, as was shown in the preceding
section, in the Virginia charter of 1609. The Senate's
line of development began apparently in the next docu-
ment,— the Virginia charter of 161 1-12.
This charter created what may be called an executive
council, which was to sit every week and manage the
casual and ordinary affairs, very much as a governor or
any other executive officer might manage them. This
>23
Evolution of the Constitution
body certainly bore a strong resemblance to the gover-
nor's council, which soon afterwards appeared ; and not
infrequently in the colonial period this form of an ex-
ecutive council, without any governor or with a governor
merely subservient to the council, was made use of.
But in the next document, the Massachusetts charter
of 1629, the council appears as a body of persons to
advise and assist the governor, a form in which it con-
tinued, with variations and developments, for over a hun-
dred years. In this Massachusetts charter of 1629, the
assistants, as the council is called, are to sit with the
whole body of the freemen to enact laws. In the next
document, the Fundamental Orders of Connecticut of
1638, the freemen, instead of meeting in a body to enact
laws, send delegates to a general assembly, and the
council, in this instance called magistrates, is a part of
this assembly.
The council as a part of the assembly, sitting and
voting with it, is now well established as a regular de-
partment of colonial government, and we find it in the
Connecticut charter of 1662, the Rhode Island charter
of 1663, and the Concessions of East Jersey of 1665.
But in Locke's Carolina constitution of 1669 we see
for the first time a disposition to make the council a
separate or upper house of the legislature ; and Locke
carried it so far that he gave to the council, as an upper
house, the sole privilege of originating legislation, — an
unfortunate idea, which was followed by William Penn
in one of his frames of government for Pennsylvania,
and not eradicated from American minds for many
years.
124
Evolution from the Charters
In 1674, five years after Locke's constitution, an
amendment to the Concessions of East Jersey provided
that the council should sit apart from the assembly, but
avoided Locke's excess of giving it the right to originate
legislation. But a few years afterwards, in the Pennsyl-
vania Frame of 1683, Locke's excess is followed. The
notion of making the council a separate and upper
house having been once acquired, it seemed impossible
to prevent it from running too far ; and in Pennsylvania
the council was given so much control of the governor
that he was a mere figure-head.
The Pennsylvania Frame of 1683 had, however, the
interesting development of dividing the members of
the council into classes, so that one-third should retire
from office each year, — a method adopted in some of
the constitutions of 1 776, and afterwards followed in the
Senate of the National Constitution.
In the next document, the Massachusetts charter of
1 69 1, the council returns to its former function of sitting
with the assembly, but a new and very interesting de-
velopment appears for the first time. The council is to
be chosen to represent certain localities or great districts,
— to wit, Maine, New Plymouth, Massachusetts Bay,
and the land between the Sagadahoc River and Nova
Scotia, — ^which by their union were to form the new
province of Massachusetts. Thus we have developed
in the council the Senate's function of representing the
States of a Union.
Soon after this, in 1696, the right to originate legis-
lation was taken away from the council in Pennsyl-
vania ; so that we may say that in the year 1 700 the
125
Evolution of the Constitution
American people had developed the governor's coun-
cil into the. two main functions of the modern senate, —
namely, that it should be a separate or upper house,
and that its members should represent certain large
localities which by their union made up the common-
wealth.
So soon as we come to the constitutions of 1776, these
two ideas become more firmly established. In the first
of them, the constitution of New Hampshire, the coun-
cil is a separate and upper house and represents the
counties. In the Virginia constitution it represents dis-
tricts larger than a single county, is called for the first
time a senate, and also embodies the plan which first
appeared in the Pennsylvania frame of 1683, of having
a certain proportion of the members retire from office
each year.
In the Delaware constitution we find a slightly different
plan of rotation, and in the New York constitution of
1777 the same plan as in Virginia. The other State
constitutions repeated the characteristics already estab-
lished for an upper house, which was thus fully devel-
oped before the close of the Revolution ; and when the
National Constitution was framed, in 1787, the upper
house, with its name senate, its representation of large
localities, and its method of rotation, was transferred
easily and naturally from the governments of the States
to the new government of the Union.
An executive council established to meet once a week for
casual matters. (Virginia Charter of 161 1- 12.)
The council called assistants, and sit with the freemen to make
the laws. (Massachusetts Charter of 1629.)
126
Evolution from the Charters
The council called magistrates, and a part of the general as-
sembly. (Fundamental Orders of Connecticut of 1638.)
The council called assistants, and a part of the general assem-
bly. (Connecticut Charter of 1662.)
The above provision is substantially repeated in the Rhode
Island charter of 1663.
The governor' s council to sit with the general assembly. (Con-
cessions of East Jersey of 1665.)
The grand council an upper house and to originate legislation.
(Locke's Carolina Constitution of 1669.)
The governor's council to sit apart from the representatives.
(Amendment in 1674 to the Concessions of East Jersey of 1665 ;
I N. J. Arch., 175.)
President and his council to rule the colony. (Commission for
New Hampshire of 1680.)
The governor's council to be elected by the freemen, to origi-
nate legislation, and to be divided into classes so that one-third
part may be elected each year. (Pennsylvania Frame of April 2,
1683.)
The above provision is repeated in the Pennsylvania Frame
of 1683, except that the number of the council is reduced to
eighteen.
The governor's council to be elected yearly by the general
assembly and to represent certain districts (Massachusetts Bay,
New Plymouth, Maine, and the territory between Sagadahoc
River and Nova Scotia), and to sit in the general assembly.
(Massachusetts Charter of 1691.)
Right to originate legislation taken away from the council in
Pennsylvania. (Pennsylvania Frame of 1696.)
Council not to be a court, and apparently abolished, but was
afterwards regularly appointed by the proprietors. (Pennsylvania
Charter of Privileges of 1701.)
An executive council established for Georgia. (Georgia Char-
ter of 1732.)
The council to be appointed by the house of representatives to
represent the counties and be an upper house. (New Hamp-
shire Constitution of 1776.)
127
Evolution of the Constitution
The council to be elected by the general assembly, and to be
an upper house. (South Carolina Constitution of 1776.)
A senate representing districts of the State, to be elected by
the districts, and to be divided into classes so that one-fourth
may be elected each year. (Virginia Constitution of 1776.)
A senate representing the counties and elected by the counties.
(New Jersey Constitution of 1776.)
A senate representing the counties and elected by the counties.
(Delaware Constitution of 1776.)
A senate representing the counties and the towns of Balti-
more and Annapolis, to be elected by electors chosen by the
counties and the two towns. (Maryland Constitution of
1776.)
A senate representing the counties and elected by the counties.
(North Carolina Constitution of 1776.)
An executive council representing the counties and chosen by
the house of representatives to suggest amendments to the laws
passed by the house of representatives. (Georgia Constitution
of 1777.)
A senate chosen by certain large districts to hold office four
years, and a fourth part to be elected each year. (New York
Constitution of 1777.)
A senate chosen by districts. (Rejected Constitution of Mas-
sachusetts of 1778.)
A senate chosen by districts. (South Carolina Constitution of
1778.)
A council chosen by counties. (Rejected Constitution of New
Hampshire of 1778.)
A senate chosen by districts. (Massachusetts Constitution of
1780.)
The above provision from the Massachusetts constitution of
1 780 is repeated in the New Hampshire constitution of 1 784.
A senate to be elected by the lower house from persons nomi-
nated from each State. (Randolph's Plan, 1787.)
A senate chosen by the lower house to represent each State,
and to be divided into classes so that the terms of service shall
not expire at the same time. (Pinckney's Plan, 1787.)
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Evolution from the Charters
A senate composed of two senators from each State elected by
the legislatures of the States, and divided into classes so that one-
third may be chosen every second year. (The Constitution.)
5. Presiding Officer of the Senate.
In colonial times, when the council was a body to
assist and advise the governor, he was naturally .the pre-
siding officer of its proceedings, without any provision
to that effect in the charter. But when the New Jersey
constitution of 1776 was framed, in which the council
was an upper house of the legislature, it was thought
necessary, for the first time, to provide it in a formal
way with a chairman ; and the governor was made its
president, with the privilege given the council to choose
a vice-president, who should act in the absence of the
governor.
The New York constitution of 1777 made the lieu-
tenant-governor of the State the presiding officer of the
senate, with a casting vote in case of an equal division ;
and this plan was followed in the National Constitution,
which makes the Vice-President of the United States
president of the Senate, but with no vote " unless they
be equally divided."
Between the time of the New York constitution of
1777 and the National Constitution of 1787 the rejected
constitution of Massachusetts of 1778 and the New
Hampshire constitution of 1784 both gave the presi-
dency of the senate to the governor.
" That the Council and Assembly jointly, at their first meeting
after each annual election, shall, by a majority of votes, elect
some fit person within the Colony, to be Governor for one year,
9 129
Evolution of the Constitution
who shall be constant President of the Council, and have a cast-
ing vote in their proceedings ; and that the Council themselves
shall choose a Vice-President who shall act as such in the ab-
sence of the Governor." (New Jersey Constitution of 1776.)
"Such heutenant governor shall by virtue of his office be
president of the Senate, and upon an equal division have a cast-
ing voice in their decisions." (New York constitution of 1777.)
" The governor shall be president of the Senate." (Rejected
Constitution of Massachusetts of 1778.)
"The president of the state shall preside in the senate, shall
have a vote equal with any other member ; and shall also have
a casting vote in case of a tie." (New Hampshire Constitution
of 1784.)
" The vice president of the United States shall be president
of the senate, but shall have no vote unless they be equally
divided." (The Constitution.)
6. Freedom of Debate.
Freedom of speech in a legislative body seems not to
have needed any safeguards in colonial times, for only
one of the documents, the Concessions of West Jersey
of 1 669, contains any provision for it If the right had
been much interfered with by the governors or the Crown,
it is probable that some of the constitutions, like those
of Pennsylvania and Connecticut, which were made by
the people themselves, would have had a provision for
its protection. The right was secured for the British
Parliament by a statute passed in the first year of the
reign of William and Mary.
The Concessions of West Jersey, however, miss the
important point in the right, and merely provide that
every member of the assembly shall have liberty
of speech, which is too general. The protection the
J30
Evolution from the Charters
member needs is that he shall not be called to account
by any power outside of the legislature for what he says
at a meeting of the legislature. The legislature itself
may discipline him for improper conduct or language
at its meeting, but no outside power should be able to
punish him. This was provided for in the Maryland
constitution of 1776, as in the statute of William and
Mary, and, after passing through five or six documents,
the provision appeared in the Constitution. It is one
of the few provisions that can be traced directly to the
forms of the British government
' ' That irf every general free assembly every respective mem-
ber hath liberty of speech." (Concessions of West Jersey, 1669.)
• ' That freedom of speech and debates, or proceedings in the
Legislature, ought not to be impeached in any other court or
judicature." (Maryland Declaration of Rights of 1776.)
' • Freedom of speech and debate in Congress shall not be im-
peached or questioned in any court or place out of Congress."
(Articles of Confederation, 1778.)
" Freedom of debate and speech shall be allowed in Congress,
nor shall anything done in Congress be impeached or questioned
out of it." (Drayton's Articles of Confederation, 1778.)
"The freedom of deliberation, speech, and debate, in either
house of the legislature, is so essential to the rights of the people,
that it cannot be the foundation of any accusation or prosecution,
action or complaint, in any other court or place whatsoever."
(Massachusetts Constitution of 1780.)
The above provision from the Massachusetts constitution of
1780 is repeated in the New Hampshire constitution of 1784.
The Vermont constitution of 1786 repeats the provision g^ven
above from the Massachusetts constitution of 1780.
"Freedom of speech and debate in the Legislature shall not
be impeached, or questioned, in any place out of it." (Pinck-
ney's Plan, 1787.)
»3«
Evolution of the Constitution
"For any speech or debate in either house, they [senators
and representatives] shall not be questioned in any other place."
(The Constitution.)
7. Privilege from Arrest.
The colonial charters and constitutions contained no
provision protecting a member of the legislature from
arrest It seems to have been assumed that the privi-
lege existed as a matter of course ; but in at least one
instance it was violated.
In 1705, Biles, a member of the Pennsylvania assem-
bly, was arrested during the session of the assembly for
speaking contemptuously of the governor. He pleaded
his privilege as a member, but the court overruled the
plea. The assembly passed a resolution condemning
the sheriff and judges for violating the privilege of the
house, and the governor thereupon called the assembly
before him and, after addressing them in a most abusive
speech, adjourned them. There seems to have been no
definite settlement of the question on this occasion, but
the general opinion was probably in favor of the exist-
ence of the privilege, for the constitutions of 1776 are
usually silent about it
" The members of Congress shall be protected in their persons
from arrests and imprisonments during the time of their going to
and from, and attendance on, Congress, except for treason, felony,
or breach of the peace." (Articles of Confederation. 1778.)
" The delegates shall be protected in their persons from arrests
and imprisonments, except for treason, felony, or breach of the
peace." (Drayton's Articles of Confederation, 1778.)
"And no member <jf the house of representatives shall be
arrested, or held to bail on mesne process, during his going unto,
132
Evolution from the Charters
returning from, or his attending the general assembly." (Massa-
chusetts Constitution of 1780.)
The above provision from the Massachusetts constitution of
1780 is repeated in the New Hampshire constitution of 1784.
"The members of both houses shall, in all cases, except for
treason, felony, or breach of the peace, be free from arrest during
their attendance on Congress, and in going to and returning from
it." (Pinckney's Plan, 1787.)
"They [senators and representatives] shall in all cases, ex-
cept treason, felony, and breach of the peace, be privileged from
arrest during their attendance at the session of their respective
houses, and in going to and returning from the same." (The
Constitution.)
8. MoNEY-BlLLS.
The principle that bills for raising money from the
people should originate in that part of the legislature
which most fully represented the people — in England
the House of Commons — was familiar to the colonists,
and it may be admitted that their ideas on this subject
were taken directly from the forms of the British
government
None of the colonial charters or constitutions con-
tained any clause specially securing this right, but the
colonists always insisted that it belonged to them in all
their legislative bodies as a matter of course because
they were free-bom Englishmen. In Pennsylvania, es-
pecially, they contended for it against their proprietors
and deputy-governors with the greatest persistency, and
insisted on the right in its fullest extent, — namely, that
money-bills should not only originate in the lower house
of assembly, but should also be either accepted or re-
jected by the council or upper house without any attempt
to amend them. Some of the constitutions of 1776
»33
Evolution of the Constitution
adopted this extreme view, which was modified in the
National Constitution by allowing the Senate to propose
amendments, as in the case of other bills.
"That all bills, resolves, or votes for raising, levying, and
collecting money originate in the house • of representatives."
(New Hampshire Constitution of 1776.)
" All money-bills for the support of government shall originate
in the general assembly, and shall not be altered or amended by
the legislative council, but may be rejected by them." (South
Carolina Constitution of 1776.)
" All laws shall originate in the house of delegates, to be ap-
proved of or rejected by the senate, or to be amended with the
consent of the house of delegates ; except money-bills, which in
no instance shall be altered by the senate, but wholly approved
or rejected." (Virginia Constitution of 1776.)
"That the council shall not prepare or alter any money-bill,
which shall be the privilege of the assembly." (New Jersey
Constitution of 1776.)
"All money-bills for the support of government shall origi-
nate in the house of assembly, and may be altered, amended, or
rejected by the legislative council." (Delaware Constitution of
1776.)
"The house of delegates may originate all money-bills."
(Maryland Constitution of 1776.)
" Excepting bills and resolves levying and granting money or
other property of the State, which shall originate in the house
of representatives only, and be concurred or non-concurred in
whole by the senate." (Rejected Constitution of Massachusetts
of 1778.)
' ' That all money-bills for the support of the government shall
originate in the house of representatives, and shall not be altered
or amended by the senate, but may be rejected by them,"
(South Carolina Constitution of 1778.)
"And all acts, resolves, or votes, except grants of money,
lands, or other things, may originate in either house ; but such
134
Evolution from the Charters
g^rants shall originate in the house of representatives only."
(Rejected Constitution of New Hampshire of 1778.)
"All money-bills shall originate in the house of representa-
tives ; but the senate may propose or concur with amendments,
as on other bills." (Massachusetts Constitution of 1780.)
The above provision from the Massachusetts constitution of
1780 is repeated in the New Hampshire constitution of 1784.
" All money-bills of every kind shall originate in the house of
delegates, and shall not be altered by the senate." (Pinckney's
Plan, 1787.)
"All bills for raising revenue shall originate in the house of
representatives ; but the senate may propose or concur v/ith
amendments, as on other bills." (The Constitution.)
9. Adjournment of Congress.
The adjournment of a legislative body, either of its
own volition or by the action of a king or governor, is
a function requiring very careful regulation, because the
power to adjourn may be the bulwark of a people's
liberties or the means of inflicting the greatest tyranny
upon them.
If a king or a governor may keep an assembly sitting
as long as he pleases, or dismiss them when he pleases,
he has the means of wearing out their patience, forcing
them to pass the legislation he wants, or preventing
them from passing any legislation. On the other hand,
a legislature may sit too long and become a public
menace, or, if it consists of two branches, one may
adjourn in order to defeat the intentions of the other.
It may also be very important, under certain circum-
stances, for a legislature to have the power of sitting
indefinitely. At the time of the Revolution, a party
in the Pennsylvania legislature, wishing to destroy the
135
Evolution of the Constitution
government of the conimonwealth as it then existed,
absented themselves every day, so that a quorum could
not be formed. The minority attempted to hold meet-
ings, but, as they could not pass a valid act, the legis-
lature finally perished, and there was a revolution in the
government. If the minority had had power to adjourn
from day to day and to compel the attendance of absent
members, they could have continued the life of the .
legislature until a quorum had been collected.
The colonists had much experience with all these
questions, and were greatly troubled by some of them ;
and the clauses finally adopted in the National Consti-
tution were as delicate a balancing of power between the
President and Congress and between the two branches
of Congress as could have been devised.
The summary given below from the charters and con-
stitutions shows that in 1638 the right of the legislature
to adjourn when it pleased was fully conceded in the
Fundamental Orders of Connecticut of that year, which
also gave the governor and his council power to call
the legislature together in an emergency, — a power
afterwards given to the President in the National Con-
stitution. After that the legislature's power to adjourn
was occasionally curtailed and given to the governor or
the king. In 1754, in Franklin's plan of union, a sort
of balancing of the power between the executive and
the legislature first appears. The executive may ap-
parently adjourn them, but not for more than six weeks
without their consent or the special command of the
Crown ; nor can they be compelled to sit longer than
six weeks except by the same consent or command.
136
Evolution from the Charters
This is also the first appearance of a provision to prevent
an assembly from being compelled to sit too long.
In the New Hampshire constitution of 1776 a pro-
vision appears to prevent one branch of a legislature
from adjourning without the consent of the other ; and
this is repeated in various forms until it appears in the
National Constitution.
In the same year, i 'j'jdy the South Carolina constitu-
tion provides that the executive may call the legislature
before the time to which they stand adjourned, when
urgent necessity requires it This is also repeated until
it appears in the National Constitution, and it is a pro-
vision often made use of and considered of much
value.
In the New Jersey constitution of i yj^ appeared the
provision that the two branches must meet at the same
time. The Delaware constitution of 1776 provides that
they must meet at the same time and place ; and the
Maryland constitution of the same year provides that,
if the two branches disagree as to the time to which
they shall adjourn, the governor may decide the ques-
tion,— both of which provisions are to be found in the
National Constitution.
General court adjourned only by consent of majority. Gov-
ernor and council may call the legislature for a special occasion.
(Fundamental Orders of Connecticut, 1638.)
Assembly may meet and adjourn at pleasure. (Concessions of
East Jersey, 1665.) Repealed, and the right to adjourn given to
the governor and council, in 1672.
The palatine's court (consisting of the palatine and eight
others) may dissolve the parliament at pleasure. (Locke's Caro-
lina Constitution of 1669.)
«37
Evolution of the Constitution
Assembly may meet and adjourn at pleasure. (Concessions
of West Jersey, 1677.)
Governor and council may adjourn the assembly. (Pennsyl-
vania Frame of April 2, 1683.)
Governor may adjourn the assembly. (Massachusetts Charter
of 1691.)
Governor and council may adjourn the assembly. (Pennsyl-
vania Frame of 1696.)
Assembly may adjourn at pleasure. (Pennsylvania Charter of
Privileges, 1701.)
Assembly may adjourn for two days, but not longer without
the consent of the governor. (Explanatory Charter of Massachu-
setts of 1726.)
Grand council not to be adjourned or continued sitting longer
than six weeks without their own consent or the special command
of the Crown. (Franklin's Plan of 1754.)
Council not to be adjourned or continued sitting longer than
six weeks without their own consent. (Hutchinson's Plan of
1754.)
Neither branch of the legislature to adjourn longer than from
Saturday to Monday without the consent of the other. (New
Hampshire Constitution of 1776.)
Either branch of the legislature may adjourn at pleasure, but
the president, when necessary, may call them before the time to
which they stand adjourned. Sixty-nine members to be a quorum,
but the speaker and any seven members may adjourn from day
to day. (South Carolina Constitution of 1776.)
The above is substantially repeated in the Virginia constitu-
tion of 1776.
The assembly may adjourn at pleasure, but the council must
meet at the same time as the assembly. (New Jersey Constitu-
tion of 1776.)
Either branch of the legislature may adjourn at pleasure, but
the president may, with the advice of his council or on applica-
tion of a majority of either house, call them before the time to
which they stand adjourned, and the two houses must sit at the
same time and place. (Delaware Constitution of 1776.)
138
Evolution from the Charters
Legislature may adjourn at pleasure, but the president, with
the council, may call them before the time to which they stand
adjourned. (Pennsylvania Constitution of 1776.)
Either branch of the legislature may adjourn at pleasure, but
if they adjourn to different days the governor may appoint some
day between, and the governor may, with the advice of his coun-
cil, call them before the time to which they shall in any manner
be adjourned. (Maryland Constitution of 1776.)
Either branch of the legislature may adjourn at pleasure.
(North Carolina Constitution of 1776.)
Governor, with advice of council, may call assembly before the
time to which they stand adjourned. (Georgia Constitution of
^777')
Governor may convene both branches on extraordinary occa-
sions and may prorogue them for not more than sixty days in a
year, and neither branch may adjourn for more than two days
without the consent of the other. (New York Constitution of
^777-)
The Vermont constitution of 1777 repeats the provision from
the Pennsylvania constitution of 1 776.
The council may at their pleasure require the governor to ad-
journ them, but neither branch shall adjourn itself for more than
two days at one time. The governor may call the legislature to-
gether, if necessary, before the time to which they stand adjourned.
(Rejected Constitution of Massachusetts of 1778.)
The legislature may adjourn at pleasure, but neither branch of
it may adjourn for longer than three days without the consent of
the other. The governor may, with the advice of the council, call
the legislature before the time to which they stand adjourned.
(South Carolina Constitution of 1778.)
Neither branch of the legislature may adjourn for more than
two days without the consent of the other, and the president, with
the advice of three or more of the council, may call the legislature
before the time to which they stand adjourned. (Rejected Con-
stitution of New Hampshire of 1778.)
The legislature may at their pleasure require the governor to
adjourn them. The House of Representatives may adjourn for
139
Evolution of the Constitution
not more than two days at a time, and, in case of disagreement
between the two branches with regard to adjournment, the gov-
ernor may, with the advice of the council, adjourn them not ex-
ceeding ninety days, and he may in cases of necessity call them
before the time to which they stand adjourned. (Massachusetts
Constitution of 1780.)
The Congress may adjourn to any time within the year so that
no period of adjournment be longer than six months. (Articles
of Confederation, 1778.)
The above is substantially repeated in Drayton's Articles of
Confederation, 1778.
The provision of the Massachusetts constitution of 1780 is sub-
stantially repeated in the New Hampshire constitution of 1 784.
Neither house, without the consent of the other, shall adjourn
for more than days nor to any place but where they are
sitting. (Pinckney's Plan, 1787.)
" The Congress shall assemble at least once in every year. . . .
A majority of each [house] shall constitute a quorum to do
business ; but a smaller number may adjourn from day to day,
and may be authorized to compel the attendance of absent mem-
bers. . . . Neither house during the session of congress shall,
without the consent of the other, adjourn for more than three days
nor to any other place than that in which the two houses shall be
sitting. . . . He [the President] may, on extraordinary occasions,
convene both houses or either of them, and, in case of disagree-
ment between them with respect to the time of adjournment, he
may adjourn them to such time as he shall think proper." (The
Constitution.)
10. War Power.
The power to declare war and make peace is a most
important function of government ; for on it may de-
pend the existence or honor of the nation. Where the
power should be lodged, whether with the executive
or with the legislature, or with both, has been a much
debated question in our history.
140
Evolution from the Charters
In the early colonial governments it was often given
to everybody. In several of the charters, as the sum-
mary shows, the whole company in general, and the
governor and every other officer in particular, seem to
have been endowed with authority to make war at any
moment This was natural enough, because in primi-
tive governments in wild countries the war power is
often the all-important function which overshadows all
others.
As time went on, however, there seems to have been
considerable doubt in the minds of constitution-framers
as to who should be responsible for war and peace.
The tendency to give the legislature a share in the re-
sponsibility is first shown in the Rhode Island charter
of 1663. In the Concessions of East Jersey of 1665
the legislature alone has the power, and this method
was adopted in the National Constitution, where the
war power is given to Congress alone. But between
the Concessions of East Jersey and the Constitution it
vacillated, sometimes being given to the governor alone,
and sometimes to the governor and the legislature.
The fundamental principle underlying the grant of
the power seems to be that it should be given to what-
ever body is, in the fullest sense of the word, the nation.
In England it was given to the king because he was the
nation ; and in the United States, where the people are
the nation, it is given to Congress, which represents the
people.
But, as the President controls the army and navy and
the action of diplomatic agents, he can easily, by an
overt act, commit the country to a war which Congress
141
Evolution of the Constitution
would be bound to accept ; as was done in the case of
our war with Mexico. In theory Congress has the
power, but the real power is with one man as fully as it
was in Sir Walter Raleigh's charter of 1584.
War power given to Sir Walter Raleigh. (Sir Walter Raleigh's
Charter, 1584.)
Given generally to the two colonies of Virginia. (Virginia
Charter of 1606.)
Given generally to the company, governor, and other officers.
(Virginia Charter of 1609.)
Given generally to council, governor, and other officers.
(Charter of New England of 1620.)
Given generally. (Massachusetts Charter of 1629.)
Given to the proprietor. (Maryland Charter of 1632.)
To the proprietor. (Grant of Maine of 1639.)
To the governor and officers. (Connecticut Charter of
1662.)
To the governor, assistants, and general assembly ; and, when
the general assembly is not sitting, to the governor and assistants.
(Rhode Island Charter of 1663.)
To the proprietor. (Carolina Charter of 1663.)
To the general assembly. (Concessions of East Jersey, 1665.)
To the proprietor. (Carolina Charter of 1665.)
To the grand council. (Locke's Constitution of 1669.)
To the council. (Commission for New Hampshire of 1680.)
To the proprietor. (Pennsylvania Charter of 1681.)
To the governor. (Massachusetts Charter of 1691.)
To the corporation. (Georgia Charter of 1732.)
To the president-general and grand council. (Franklin's Plan
of Union of 1754.)
To the president and council. (Hutchinson's Plan of 1754.)
To Congress. (Franklin's Articles of Confederation, 1775.)
To the president and the legislature. (South Carolina Consti-
tution of 1776.)
To the governor. (South Carolina Constitution of 1778.)
142
Evolution from the Charters
To Congress ; but a State may engage" in war when actually
invaded. (Articles of Confederation, 1778.)
To Congress. (Drayton's Articles of Confederation, 1778.)
To the governor. (Massachusetts Constitution of 1780.)
To the governor. (New Hampshire Constitution, 1784.)
To the Senate. (Pinckney's Plan, 1787.)
To Congress. (The Constitution.)
II. Speakership and Procedure of Congress.
A legislative body would seem to have a natural and
inherent right to judge of the qualifications and elections
of its own members, appoint its own speaker and other
officers, and regulate its own methods of procedure,
after the manner of the British House of Commons.
The charters granted by the Crown made no regulation
of these matters, and in some of the Colonies the gov-
ernor claimed that his approval was necessary before
the speaker elected by the assembly could assume his
office. There were several contests in Massachusetts
on this question, and in the end the Explanatory Char-
ter of 1726 confirmed the necessity of the governor's
consent in the election of a speaker. (Follett's Speaker
of the House of Representatives, 12.) But whenever
in colonial times the people prepared a constitution for
themselves free from interference by the Crown, they
usually thought it necessary to provide for the exercise
of this right by the legislature, and the constitutions of
1776 carried on the development to the National Con-
stitution.
" It is ordered and decreed, that the deputy es thus chosen shall
haue power and liberty to appoynt a tyme and a place of meeting
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Evolution of the Constitution
togather before any Generall Courte to aduise and consult of all
such things as may concerne the good of the publike, as also to
examine their owne Elections, whether according to the order,
and if they or the gretest p'te of them find any election to be
illegall they may seclud such for p'sent fro their meeting, and
returne the same and their resons to the Courte ; and if yt proue
true, the Courte may fyne the p'ty or p'tyes so intruding and the
Towne, if they see cause, and giue out a warrant to goe to a newe
election in a legall way, either in p'te or in whole. ... It is Or-
dered, sentenced and decreed, that euery Generall Courte, except
such as through neglecte of the Gou'nor and the greatest pne of
Magestrats the Freemen themselves doe call, shall consist of the
Gouernor, or some one chosen to moderate the Court, and 4 other
Magestrats at lest, w* the mayor p'te of the deputyes of the
seuerall Townes legally chosen ; and in case the Freemen or
mayor p''te of the, through neglect or refusall of the Gouernor
and mayor p'te of the magestrats, shall call a Courte, y' shall
consist of the mayor p'te of Freemen that are p'sent or their
deputyes, w"* a Moderator chosen by the." (Fundamental Orders
of Connecticut, 1638.)
' ' All questions to be determined by both or either of them
[council or assembly] that relate to . . . choice of officers . . .
shall be resolved and determined by the ballot." (Pennsylvania
Frame, April 2, 1683.)
"And the representatives so chosen either for council or as-
sembly shall yield their attendance accordingly and be the sole
judges of the regularity or irregularity of the elections of their
respective members." (Pennsylvania Frame of 1696.)
" Which assembly shall have power to chuse a speaker and
other their officers, and shall be judges of the qualifications and
elections of their own members." (Pennsylvania Charter of
Privileges of 1701.)
"Each house shall choose its own speaker, appoint its own
officers, settle its own rules of proceeding." (Virginia Constitu-
tion of 1776.)
" That the assembly, when met, shall have power to choose
a speaker and other their officers ; to be judges of the qualifica-
144
Evolution from the Charters
tions and elections of their own members." (New Jersey Consti-
tution of 1776.)
"Each house shall choose its own speaker, appoint its own
officers, judge of the qualifications and elections of its own mem-
bers, settle its own rules of proceedings. They may also sev-
erally expel any of their own members for misbehavior, but not
a second time in the same sessions for the same offence if re-
elected." (Delaware Constitution of 1776.)
• • The house of representatives shall have power to choose
their speaker, the treasurer of the state and their other officers,
judge of the elections and qualifications of their own members.
They may expel a member, but not a second time for the same
cause." (Pennsylvania Constitution of 1776.)
" That the house of delegates shall judge of the elections and
qualifications of delegates. They may expel any member for a
great misdemeanor, but not a second time for the same cause.
Each house shall appoint its own officers and settle its own rules
of proceeding." (Maryland Constitution of 1776.)
"That the senate and house of commons, when met, shall
each have power to choose a speaker and other their officers ; be
judges of the qualifications and elections of their members."
(North Carolina Constitution of 1776.)
' • The house shall choose its own speaker, appoint its own
officers and settle its own rules of proceeding." (Georgia Con-
stitution of 1777.)
' • That the assembly thus constituted shall choose their own
speaker, be judges of their own members." (New York Consti-
tution of 1777.)
The Vermont constitution of 1777 repeats the provision given
above from the Pennsylvania constitution of 1 776.
' ' The congress shall have power to make rules for regfu-
lating their proceedings." (Drayton's Articles of Confederation,
1778.)
" The senate and house of representatives shall be two sepa-
rate and distinct bodies, each to appoint its own officers and settle
its own rules of proceedings." (Rejected Constitution of Massa-
chusetts of 1778.)
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Evolution of the Constitution
"The council shall choose their president and the house of
representatives shall choose their speaker. The council and
house of representatives, respectively, shall determine all dis-
puted elections of their own members and regulate their own
proceedings." (Rejected Constitution of New Hampshire of
1778.)
"The house of representatives shall be the judge of the re-
turns, elections, and qualifications of its own members, as pointed
out in the constitution ; shall choose their own speaker, appoint
their own officers, and settle the rules and order of proceeding in
their own house." (Massachusetts Constitution of 1780.)
The above provision from the Massachusetts constitution of
1780 is repeated in the New Hampshire constitution of 1784.
"They [the general assembly] shall have power to choose
their speaker and other necessary officers, judge of the elections
and qualifications of their own members ; they may expel mem-
bers, but not for causes known to their constituents antecedent to
their election." (Vermont Constitution of 1786.)
"The house of delegates shall choose its own officers. The
senate shall choose its own officers. The house of delegates
shall be the judges of the election, returns, and qualifications of
their members. In each house a majority shall constitute a
quorum to do business. Both houses shall keep journals of their
proceedings and publish them, except on secret occasions, and
the yeas and nays may be entered thereon at the desire of one of
the members present." (Pinckney's Plan, 1787.)
"The house of representatives shall choose their speaker and
other officers. . . . Each house shall be the judge of the elec-
tions, returns, and qualifications of its own members. . . .
Each house may determine the rules of its proceedings, punish
its members for disorderly behavior, and, with the concurrence
of two-thirds, expel a member. Each house shall keep a journal
of its proceedings and from time to time publish the same, except-
ing such parts as may in their judgment require secrecy ; and
the yeas and nays of the members of either house on any ques-
tion shall, at the desire of one-fifth of those present, be entered
on the journal." (The Constitution.)
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Evolution from the Charters
12. Impeachment.
The first appearance of the power to remove and
punish an officer of government for misconduct is in
the Fundamental Orders of Connecticut of 1638, but it
is not until we reach the Rhode Island charter of 1663
that this power is called by its proper name, — impeach-
ment
The methods of trying the impeachment vary, but a
strong tendency soon appears to have the assembly
bring the impeachment and the council or senate try
it In the Virginia constitution of 1776 the person
convicted is to be disabled from holding office, and
may also be punished as the law shall direct, a descrip-
tion of the method of punishment which had not ap-
peared before. This was repeated in the Delaware
constitution of i TJ^. In the New York constitution of
1777 the manner of punishment was still more precisely
detailed. Judgment in impeachment was to extend no
farther than removal from office and disqualification
from holding office under the State, but the guilty per-
son might, in addition, be subject to indictment and
punishment in the ordinary courts according to the laws
of the land. In the Massachusetts constitution of 1780
the senators are to be sworn to try the impeachment
according to the evidence. All these provisions, in-
cluding the requirement of a two-thirds vote to convict,
were embodied in the National Constitution, and in
almost the same language in which they had appeared
in the earlier documents.
The assembly is given power to deal with any magistrate or
147
Evolution of the Constitution
other person for any misdemeanor. (Fundamental Orders of
Connecticut, 1638.)
The assembly may remove any officers of the company for
misdemeanors. (Connecticut Charter of 1662.)
The above is repeated in the Rhode Island charter of 1663.
The general assembly may impeach, and the provincial council
give judgment upon the impeachment. (Pennsylvania Frame of
April 2, 1683.)
The above is repeated in the Pennsylvania Frame of 1683.
The assembly may impeach. (Pennsylvania Charter of
Privileges, 1701.)
The house of delegates may impeach the governor when out
of office, and all others guilty of maladministration ; the impeach-
ment to be tried in the general court according to law. When
judges of the general court are impeached, the impeachment to
be tried in the court of appeals. The guilty to be disabled from
holding any office under government, and to be punished as the
law shall direct. (Virginia Constitution of 1776.)
The assembly may impeach and the council try the impeach-
ment. (New Jersey Constitution of 1776.)
The assembly may impeach the president when out of office,
and all others guilty of maladministration, and the council try
the impeachment. The guilty to be disabled from holding any
office under government, and to be punished as the law shall
direct. (Delaware Constitution of 1776.)
The general assembly may impeach and the president and
council try the impeachment. (Pennsylvania Constitution of
1776.)
The general assembly or grand jury may impeach. (North
Carolina Constitution of 1776.)
The assembly may impeach. (Georgia Constitution of 1777.)
The assembly may impeach by a two-thirds vote ; and the
impeachment be tried in a court, to consist of the president of
the senate, the senators, the chancellor and judges of the
supreme court ; no judgment, however, of the said court to be
valid unless assented to by two-thirds of the members of the
court. Judgment to extend no farther than removal from office
148
Evolution from the Charters
and disqualification to hold office under the state. But the guilty
may, nevertheless, be subject to indictment and punishment ac-
cording to the laws of the land. (New York Constitution of
The Vermont constitution of 1777 repeats the provision of
the Pennsylvania constitution of 1776.
The house of representatives may impeach, and the impeach-
ment be tried by a court composed of the governor and senate ;
but no judgment to be valid unless assented to by two-thirds of
the court. Judgment to extend no farther than removal from
office and disqualification to hold office under the state. But
the guilty may, nevertheless, be subject to indictment and punish-
ment according to the laws of the land. (Rejected Constitution
of Massachusetts of 1778.)
The house of representatives may impeach by a two-thirds
vote, and the impeachment be tried by a court composed of the
senators and such judges as are not members of the house of
representatives ; no judgment, however, to be valid unless as-
sented to by two-thirds of the members of the court. (South
Carolina Constitution of 1778.)
The house of representatives may impeach, and the impeach-
ment be tried by the senate. The senators to be sworn to try
according to the evidence. Judgment to extend no farther than
removal from office and disqualification to hold office under the
state. But the guilty may, nevertheless, be subject to indictment
and punishment according to the laws of the land. (Massachusetts
Constitution of 1780.)
The above provision is repeated in the New Hampshire
constitution of 1784.
The Vermont constitution of 1786 repeats the provision of
the Pennsylvania constitution of 1776.
Impeachments to be tried by the inferior tribunals with an
appeal to the supreme tribunal. (Randolph's Plan, 1787.)
The house of delegates may impeach, and the supreme court
try the impeachment. (Pinckney's Plan, 1787.)
"The house of representatives shall have the sole power of
impeachment. . . . The senate shall have the sole power to try
149
Evolution of the Constitution
all impeachments. When sitting for that purpose they shall be
on oath or affirmation. When the president of the United States
is tried, the chief-justice shall preside, and no person shall be
convicted without the concurrence of two-thirds of the members
present. Judgment in cases of impeachment shall not extend
further than to removal from office, and disqualification to hold and
enjoy any office of honor, trust, or profit, under the United States ;
but the party convicted shall nevertheless be liable and subject to
indictment, trial, judgment, and punishment, according to law."
(The Constitution.)
13. The Executive.
The first mention of an executive in any of the docu-
ments is in the Virginia charter of 1609, where the
council resident in England is to appoint governors and
other officers for the colony. A governor or executive
head of some sort would, of course, be necessary ; but
in colonial times it was not infrequently supposed that
the executive could be composed of several persons.
Sometimes an executive committee or council was ap-
pointed, and sometimes the governor's council was given
such control over his actions that he was a mere
cipher.
This tendency reached its extreme in the Articles of
Confederation of 1778, where, in the recess of Congress,
an executive committee ruled the country. But many-
headed executives of this sort were not a success, and,
in spite of their suspicions of one-man power, the people,
after long experience, discovered that for certain pur-
poses the one-man power was the only effective method,
and they soon learned to place upon it the limitations
that were necessary for its proper restraint
In the summary under this section the points to be
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Evolution from thie Charters
noticed are the gradual appearance of a deputy- or
lieutenant-governor, leading up to the Vice-President of
the Constitution ; the gradual appearance of the name
President to describe the executive ; the appointment of
the executive, usually by the legislature or the Crown,
until the time of the New York constitution of 1777,
which gave the election of the governor to the people ;
and the short terms for which governors or presidents
were elected. There was also not infrequently a pro-
vision to prevent their too frequent re-election. These
provisions about terms and re-election suggest at once
the four years' term given to the President under the
Constitution, and the custom, that has become as fixed
as if it were a part of the Constitution, of allowing no
man to serve more than two terms.
The council resident in England to appoint a governor for Vir-
ginia. (Virginia Charter of 1609.)
An executive council to meet once a week and to deal with
casual matters. (Virginia Charter of 1611-12.)
A governor and a deputy-governor to be elected by the free-
men. (Massachusetts Charter of 1629.)
A governor to be chosen by the general assembly every year.
(Fundamental Orders of Connecticut, 1638.)
A governor and a deputy -governor to be chosen by the general
assembly every year. (Connecticut Charter of 1662.)
The above provision is repeated in the Rhode Island charter
of 1663.
The governor to be appointed by the proprietors. (Concessions
of East Jersey, 1665.)
The eldest lord proprietor to be palatine. (Locke's Carolina
Constitution of 1669.)
The executive to consist of ten commissioners chosen by the
assembly. (Concessions of West Jersey, 1677.)
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Evolution of the Constitution
The governor to be appointed by the proprietor. (Pennsyl-
vania Frame of April 2, 1683.)
The governor and lieutenant-governor to be appointed by the
Crown. (Massachusetts Charter of 1691.)
A president-general appointed by the Crown. (Franklin' s Plan
of 1754.)
A president appointed by the Crown. (Hutchinson's Plan,
1754-)
A president-general appointed by the Crown. (Galloway's
Plan, 1774.)
A president and vice-president chosen by the assembly and
council. (South Carolina Constitution of 1776.)
A governor to be chosen by joint ballot of both houses every
year. (Virginia Constitution of 1776.)
The governor to be chosen by the council and assembly and
the vice-president by the council every year. (New Jersey Con-
stitution of 1776.)
A president to be chosen by joint ballot of both houses for
three years. (Delaware Constitution of 1776.)
The executive power to consist of a council of twelve and a
president and vice-president chosen out of the council by the
joint ballot of the assembly and council every year. (Pennsyl-
vania Constitution of 1776.)
The governor to be chosen by the joint ballot of both houses
every year. (Maryland Constitution of 1776.)
The governor to be chosen by joint ballot of both houses every
year. (North Carolina Constitution of 1776.)
The governor to be chosen by the representatives every year.
(Georgia Constitution of 1777.)
The governor to be elected by the freeholders every three
years. (New York Constitution of 1777.)
The executive council, governor, and lieutenant-governor to be
elected by the fi-eemen. (Vermont Constitution of 1777.)
The governor and lieutenant-governor to be elected by the
people every year. (Rejected Constitution of Massachusetts of
1778.)
The governor and lieutenant-governor to be elected by joint
»52
Evolution from the Charters
ballot of both houses every two years. (South Carolina Constitu-
tion of 1778.)
An executive committee to be appointed by the congress of the
confederation. (Articles of Confederation of 1778.)
The governor to be chosen by the people every year. (Massa-
chusetts Constitution of 1780.)
The above provision from the Massachusetts Constitution of
1780 is repeated in the New Hampshire Constitution of 1784, ex-
cept that the executive is called president.
The executive council, the governor, and the lieutenant-gov-
ernor to be chosen by the freemen every year. (Vermont Con-
stitution of 1786.)
A national executive to be chosen by the national legislature.
(Randolph's Plan, 1787.)
A president suggested as an executive. (Pinckney's Plan,
1787.)
The president and vice-president to be chosen by electors
elected by the people of each State every four years. (The Con-
stitution.)
14. Electors of the President.
The following quotations are given to show how the
method of electing the President was taken from the
method of electing Senators in Maryland :
' • That the senate be chosen in the following manner : All
persons, qualified as aforesaid to vote for county delegates, shall,
on the first day of September, 1781, and on the same day in
every fifth year forever thereafter, elect, viva voce, by a majority
of votes, two persons for their respective counties (qualified as
aforesaid to be elected county delegates) to be electors of the
senate ; and the sheriff of each county, or, in case of sickness,
his deputy (summoning two justices of the county, who are re-
quired to attend, for the preservation of the peace), shall hold
and be judge of the said election, and make return thereof, as
aforesaid. And all persons, qualified as aforesaid, to vote for
delegates for the city of Annapolis and Baltimore town, shall, on
'53
Evolution of the Constitution
the same first Monday of September, 1781, and on the same day
in every fifth year forever thereafter, elect, viva voce, by a majority
of votes, one person for the said city and town respectively, quali-
fied as aforesaid to be elected a delegate for the said city and town
respectively ; the said election to be held in the same manner as
the election of delegates for the said city and town ; the right to
elect the said elector, with respect to Baltimore town, to continue
as long as the right to elect delegates for the said town.
"That the said electors of the senate meet at the city of An-
napolis, or such other place as shall be appointed for convening the
legislature, on the third Monday in September, 1781, and on the
same day in every fifth year forever thereafter, and they, or any
twenty-four of them so met, shall proceed to elect, by ballot, either
out of their own body or the people at large, fifteen senators (nine
of whom to be residents on the western and six to be residents
on the eastern shore), men of the most wisdom, experience, and
virtue, above twenty-five years of age, residents of the State
above three whole years next preceding the election, and having
real and personal property above the value of one thousand
pounds current money.
' ' That the senators shall be balloted for, at one and the same
time, and out of the gentlemen residents of the western shore,
who shall be proposed as senators, the nine who shall, on striking
the ballots, appear to have the greatest numbers in their favour,
shall be accordingly declared and returned duly elected ; and out
of the gentlemen residents of the eastern shore, who shall be
proposed as senators, the six who shall, on striking the ballots,
appear to have the greatest number in their favour, shall be ac-
cordingly declared and returned duly elected : and if two or more
on the same shore shall have an equal number of ballots in their
favour, by which the choice shall not be determined on the first
ballot, then the electors shall again ballot, before they separate ;
in which they shall be confined to the persons who on the first
ballot shall have an equal number : and they who shall have the
greatest number in their favour on the second ballot, shall be
accordingly declared and returned duly elected : and if the whole
number should not thus be made up, because of an equal number,
154
Evolution from the Charters
on the second ballot, still being in favour of two or more persons,
then the election shall be determined by lot, between those who
have equal numbers ; which proceedings of the electors shall be
certified under their hands, and returned to the chancellor for the
time being." (Maryland Constitution of 1776,)
"Each state shall appoint, in such manner as the legislature
thereof may direct, a number of electors equal to the whole
number of senators and representatives to which the state may
be entitled in the congress ; but no senator or representative, or
person holding an office of trust or profit under the United States,
shall be appointed an elector.
"The electors shall meet in their respective states, and vote
by ballot for two persons, of whom one at least shall not be an
inhabitant of the same state with themselves. And they shall
make a Hst of all the persons voted for, and of the number of
votes for each, which list they shall sign and certify, and transmit
sealed to the seat of the government of the United States, directed
to the president of the senate. The president of the senate shall,
in the presence of the senate and house of representatives, open
all the certificates, and the votes shall then be counted. The
person having the greatest number of votes shall be the president,
if such number be a majority of the whole number of electors
appointed ; and if there be more than one who have such a
majority, and have an equal number of votes, then the house of
representatives shall immediately choose by ballot one of them
for president ; and if no person have a majority, then from the
five highest on the list the said house shall in like manner choose
the president. But in choosing the president, the votes shall be
taken by states, the representation fi-om each state having one
vote, A quorum for this purpose shall consist of a member or
members from two-thirds of the states, and a majority of all the
states shall be necessary to a choice. In every case, after the
choice of the president, the person having the greatest number
of votes of the electors shall be the vice-president. But if there
should remain two or more who have equal votes, the senate shall
choose from them by ballot the vice-president."
[The above quotation, which was Clause 3 of Section I,
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Evolution of the Constitution
Article II., of the Constitution, has been somewhat altered by
the Twelfth Amendment.]
1 5. Duty to Execute the Laws.
The National Constitution contains the phrase " He
[the President] shall take care that the laws be faithfully
executed," — a short statement, but a very important
summary of a large part of the duty of the President,
and one of the clauses which give him authority to put
down a rebellion.
When we trace its origin in our documents we find
the earliest reference to such a principle in the Massa-
chusetts charter of 1629, which merely says that the
laws must be observed and put in execution, without
assigning the duty to any one in particular. But in the
Maryland charter of 1632 the proprietor is assigned the
duty and given the means of performing it in a very
summary manner. After that the duty is usually given
to the governor, and the language used becomes more
and more like the simple, brief expression which finally
appears in the Constitution.
"Willing, comaunding, and requiring, and by theis Presents
for Vs, our Heires, and Successors, ordeyning and appointing,
that all such Orders, Lawes, Statuts and Ordirmces, Instruccons
and Direccons, as shalbe soe made by the Governor, or Deputie
Governor of the said Company, and such of the Assistants and
Freemen as aforesaide, and published in Writing, vnder their
comon Seale, shalbe carefuUie and dulie observed, kept, per-
formed, and putt in Execucon, according to the true intent and
meaning of the same." (Massachusetts Charter of 1629.)
"Do grant free, full, and absolute power, by virtue of these
presents to him [Lord Baltimore] and his heirs for the good and
156
Evolution from the Charters
happy government of the said province, the same laws duly to
execute upon all the people within the said province by imposition
of penalties, imprisonment, or any other punishment ; yea, if it
shall be needful, and that the quality of the offence require it, by
taking away member or life, either by him, the said now Lord
Baltimore and his heirs, or by his or their deputies, lieutenants,
judges, justices, magistrates, officers, and ministers, to be or-
dained or appointed according to the tenor and true intention of
these presents." (Maryland Charter of 1632.)
" I "R, TKl. being now chosen to be Goumor w'^'in this Jurisdic-
tion, for the yeare ensueing, and vntil a new be chosen, doe
sweare by the greate and dreadfuU name of the everliueing God,
to p'mote the publicke good and peace of the same, according to
the best of my skill ; as also will mayntayne all lawfuU priuiledges
of this Coifionwealth ; as also that all wholsome lawes that are
or shall be made by lawfuU authority here established, be duly
executed." (Fundamental Orders of Connecticut, 1638.)
The Carolina charter of 1663 copies the provision given above
from the Maryland charter of 1632.
"The governor, with his council before expressed, is to see
that all courts established by the laws of the general assembly, and
all ministers and officers, civil and military, do and execute their
several duties and offices respectively according to the laws in
force, and to punish them for swerving from the laws or acting
contrary to their trust, as the nature of their offence shall require."
(Concessions of East Jersey, 1665.)
The Carolina charter of 1665 copies the provision given above
from the Maryland charter of 1632.
" And the same laws duly to execute unto and upon all people
within the said country and the limits thereof." (Pennsylvania
Charter of 1681.)
• ' That 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."
(Pennsylvania Frame of April 2, 1683.)
The above provision is repeated in the Pennsylvania Frame of
1683 and also in the Pennsylvania Frame of 1696.
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Evolution of the Constitution
' ' That it be his office and duty to cause them to be carried
into execution." (Frankhn's Plan of 1754.)
•' It shall be his office and duty to cause them to be carried into
execution." (Galloway's Plan, 1774.)
' ' The president, and, in his absence, the vice-president, with
the council, are also to take care that the laws be faithfully exe-
cuted." (Pennsylvania Constitution of 1776.)
"I, A. B., elected governor of the state of Georgia, do sol-
emnly promise and swear that I will use my utmost endeavors
that the laws and ordinances of the state be duly observed."
(Georgia Constitution of 1777.)
" That it shall be the duty of the governor to take care that the
laws are faithfully executed to the best of his ability." (New
York Constitution of 1777.)
The Vermont constitution of 1777 and the Vermont constitu-
tion of 1 786 repeat the provision given above from the Pennsyl-
vania constitution of 1776.
" He [the President] shall take care that the laws of the United
States be duly executed." (Pinckney's Plan, 1787.)
" He [the President] shall take care that the laws be faithfully
executed." (The Constitution.)
16. The President as Commander-in-Chief.
The Constitution describes the President as com-
mander-in-chief, and gives him control over the army
and navy and over the militia of the several States
when called into the actual service of the United States.
The origin of this power and of the name commander-
in-chief is perhaps as good an illustration as could be
given of the growth which preceded the formation of the
Constitution.
The first quotation, which is from the Concessions of
East Jersey of 1665, shows the power given without the
name. The proprietors of East Jersey provided that
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Evolution from the Charters
the governor whom they appointed should control any
militia that might be raised in their wilderness province.
Thirty-one years afterwards, when William Penn was
preparing his plan for a union of all the colonies, he also
thought that the person who was to be the executive to
cany out the plan should have control of the militia
of the colonies, and he almost gave him the name that
was finally adopted, for he called him a " chief com-
mander." Thirty-six years later the Georgia charter of
1732 called him the commander-in-chief, and from that
time on this name alternates with captain-general, until
the Constitution adopts it in a clause which briefly
summarizes the forms that had been previously given.
"The said governor, who is commissionated by us over the
several framed [train] bands and companies." (Concessions of
East Jersey, 1665.)
" That in times of war the king's high commissioner shall be
general or chief commander of the several quotas upon service
against the common enemy, as he shall be advised, for the good
and benefit of the whole." (Penn's Plan of Union, 1696.)
"And our will and pleasure is, and we do hereby, for us, our
heirs and successors, declare and grant that the governor and
commander-in-chief of the province of South Carolina, of us, our
heirs and successors, for the time being, shall at all times here-
after have the chief command of the militia of our said province,
hereby erected and established." (Georgia Charter of 1732.)
" That the supreme command of all the military force em-
ployed by the president and council be in the president." (Hutch-
inson's Plan, 1754.)
"That the general assembly and the said legislative council
shall jointly choose by ballot frqfti among themselves, or from the
people at large, a president and commander-in-chief and a vice-
president of the colony." (South Carolina Constitution of 1776.)
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Evolution of the Constitution
"That the governor, or, in his absence, the vice-president of
the council, shall act as captain-general and commander-in-chief
of all the militia and other military force in this colony. ' ' (New
Jersey Constitution of 1776.)
" The president, with the advice and consent of the privy coun-
cil, may act as captain-general and commander-in-chief" [of the
militia], (Delaware Constitution of 1776.)
' ' The president shall be commander-in-chief of the forces of
the State, but shall not command in person, except advised thereto
by the council, and then only so long as they shall approve
thereof." (Pennsylvania Constitution of 1776.)
"The governor, for the time being, shall be captain-general
and commander-in-chief of the militia. ' ' (North Carolina Con-
stitution of 1776.)
"The governor, for the time being, shall be captain-general
and commander-in-chief over all the militia and other military
and naval forces belonging to this State.' ' (Georgia Constitution
of 1777.)
• ' That the governor shall, by virtue of his office, be general
and commander-in-chief of all the militia and admiral of the
navy of this State." (New York Constitution of 1777.)
The Vermont constitution of 1777 repeats the provision given
above from the Pennsylvania constitution of 1776.
"The congress shall have the sole power of appointing a
generalissimo and commander-in-chief of the land forces."
(Drayton's Articles of Confederation, 1778.)
' • He [the governor] shall be general and commander-in-chief
of the militia and admiral of the navy of this State." (Rejected
Constitution of Massachusetts of 1778.)
" The governor of this commonwealth, for the time being, shall
be the commander-in-chief of the army and navy and of all the
military forces of the State by sea and land." (Massachusetts
Constitution of 1780.)
The above provision from the Massachusetts constitution of
1780 is repeated in the New Haiflpshire constitution of 1784.
The Vermont constitution of 1786 repeats the provision given
above from the Pennsylvania constitution of 1776.
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Evolution from the Charters
" He [the President] shall be commander-in-chief of the army
and navy of the United States, and of the miUtia of the several
States." (Pinckney's Plan, 1787.)
" The President shall be commander-in-chief of the army and
navy of the United States, and of the militia of the several States
when called into the actual service of the United States." (The
Constitution.)
17. Veto Power.
The quotations in this section show the absolute veto
power of governor or king as it existed in various forms
in colonial times up to the New York constitution of
1777, when the modified veto appeared, afterwards
adopted in the Constitution.
The first appearance of anything like a veto power
was in the Maryland charter of 1632, which gave Lord
Baltimore the power to make laws with the assent of
the freemen or their delegates. The effect of this in
practice was, of course, that the assembly of the free-
men made the laws and submitted them to Lord Balti-
more or his deputy for approval.
" Know ye therefore, moreover, that we, reposing especial
trust and confidence in the fidelity, wisdom, justice, and provi-
dent circumspection of the said now Lord Baltimore, for us, our
heirs and successors, do grant free, full, and absolute power, by
virtue of these presents, to him and his heirs, for the good and
happy government of the said province, to ordain, make, enact,
and, under his and their seals, to publish any laws whatsoever
appertaining either unto the public state of the said province or
unto the private utility of particular persons according unto their
best discretions, of and with the advice, assent, and approbation
of the freemen of the said province, or the greater part of them,
or of their delegates or deputies." (Maryland Charter of 1632.)
IX 161
Evolution of the Constitution
The above provision is repeated in the Carolina charter of
1663.
"Which laws, etc., so made shall receive publication from the
governor and council (but as the laws of us and our general as-
sembly) and be in force for the space of one year and no more
unless contradicted by the lords proprietors, within which time
they are to be presented to us, our heirs, etc., for our ratification,
and, being confirmed by us, they shall be in continual force till
expired by their own limitation or by act of repeal in like manner
to be passed as aforesaid and confirmed." (Concessions of East
Jersey, 1665.)
The Carolina Charter of 1665 copies the provision given above
from the Maryland Charter of 1632.
"The palatine's court shall consist of the palatine and seven
proprietors. This court shall have a negative upon all acts,
orders, votes, and judgments of the grand council and the par-
liament" [except in the appointment of landgraves, caziques,
and proprietors] . ' ' No act or order of parliament shall be
of any force unless it be ratified in open parliament during
the same session by the palatine or his deputy and three more
of the lords proprietors or their deputies, and then not to con-
tinue longer in force but until the next biennial parliament,
unless in the mean time it be ratified under the hands and
seals of the palatine himself and three more of the lords
proprietors themselves, and by their order published at the
next biennial parliament." (Locke's Carolina Constitution of
1669.)
' ' And our will and pleasure is, and we do hereby declare,
ordain, and grant, that all and every such Acts, Laws, and ordi-
nances, as shall from time to time be made in and by such gen-
eral Assembly or Assemblies, shall be first approved and allowed
by the Pres. and Councell for the time being, and, thereupon
shall stand and be in force until y* pleasure of us, our heirs
and successors, shall be known, whether y' same Laws and ordi-
nances shall receive any change or confirmation, or be totally
disallowed and discharged." (Commission for New Hampshire
of 1680.)
162
Evolution from the Charters
The Pennsylvania Charter of i68i copies the provision given
above from the Maryland Charter of 1632.
" Our further will and pleasure is that a transcript or Duplicate
of all Lawes, which shall bee soe as aforesaid made and published
within the said Province, shall within five yeares after the makeing
thereof, be transmitted and delivered to the Privy Councell, for
the time being, of us, our heires and successors : And if any of
the said Lawes, within the space of six moneths after that they
shall be soe transmitted and delivered, bee declared by us, Our
heires and Successors, in Our or their Privy Councell, inconsistent
with the Sovereigntey or lawful Prerogative of us, our heires or
Successors, or contrary to the Faith and Allegiance due by the
legall government of this Realme, from the said Wiliiam Penn,
or his heires, or of the Planters and Inhabitants of the said Prov-
ince, and that thereupon any of the said Lawes shall bee adjudged
and declared to bee void by us, our heires or Successors, under
our or their Privy Scale, that then and from thenceforth, such
Lawes, concerning which such Judgement and declaration shall
bee made, shall become voyd : Otherwise the said Lawes soe
transmitted, shall remaine, and stand in full force, according to
the true intent and meaneing thereof." (Pennsylvania Charter of
1681.)
" Provided alwaies and Wee doe by these presents for vs Our
Heires and Successors Establish and Ordaine that in the frameing
and passing of all such Orders Laws Statutes and Ordinances and
in all Elections and Acts of Government whatsoever to be p>assed
made or done by the said Generall Court or Assembly or in Coun-
cill the Governor of our said Province or Territory of the Massa-
chusetts Bay in New England for the time being shall have the
Negative voice and that without his consent or Approbation signi-
fied and declared in Writeing no such Orders Laws Statutes
Ordinances Elections or other Acts of Government whatsoever soe
to be made passed or done by the said Generall Assembly or in
Councill shall be of any Force effect or validity anything herein
contained to the contrary in anywise notwithstanding And wee
doe for vs Our Heires and Successors Establish and Ordaine that
the said Orders Laws Statutes and Ordinances be by the first
163
Evolution of the Constitution
opportunity after the makeing thereof sent or Transmitted vnto vs
Our Heires and Successors vnder the Publique Seale to be ap-
pointed by vs for Our or their approbation or Disallowance And
that in case all or any of them shall at any time within the space
of three yeares next after the same shall have been presented to
vs our Heires and Successors in Our or their Privy Councill be
disallowed and reiected and soe signified by vs Our Heires and
Successors vnder our or their Signe Manuall and Signett or by or
in our or their Privy Councill vnto the Governor for the time
being then such and soe many of them as shall be soe disallowed
and riected shall thenceforth cease and determine and become
vtterly void and of none effect Provided alwais that incase Wee
our Heires or Successors shall not within the Terme of Three
Yeares after the presenting of such Orders Lawes Statutes or
Ordinances as aforesaid signifie our or their Disallowance of
the same Then the said orders Lawes Statutes or Ordinances
shall be and continue in full force and effect according to the true
Intent and meaneing of the same vntill the Expiracon thereof
or that the same shall be Repealed by the Generall Assembly of
our said province for the time being." (Massachusetts Charter,
1691.)
"All which proposed and prepared bills, or such of them as
the governor, with the advice of the council, shall in open assem-
bly declare his assent unto shall be the laws of this province and
territories thereof." (Pennsylvania Frame of 1696.)
" In all which cases the governor-general or lieutenant is to
have a negative." (Daniel Coxe'sPlan, 1722.)
' ' And the same [laws] shall and may present under their
common seal to us, our heirs and successors, in our or their privy
council for our or their approbation or disallowance : and the said
laws, statutes and ordinances, being approved of by us, our heirs
and successors, in our or their privy council, shall from thence
forth be in full force and virtue within our said province of
Georgia." (Georgia Charter of 1732.)
" That the assent of the president-general be requisite to all
acts of the grand council." (Franklin's Plan of 1754.)
" That the assent of the president be made necessary to all
164
Evolution from the Charters
acts of the council, saving the choice of the speaker," (Hutch-
inson's Plan, 1754.)
' ' The president-general's assent shall be requisite to all acts of
the grand council." (Galloway's Plan, 1774.)
' ' Bills having passed the general assembly and legislative
council may be assented to or rejected by the president and
commander-in-chief." (South Carolina Constitution of 1776.)
"And whereas laws inconsistent with the spirit of this consti-
tution, or with the public good, may be hastily and unadvisedly
passed : Be it ordained, that the governor for the time being, the
chancellor, and the judges of the supreme court, or any two of
them, together with the governor, shall be, and hereby are, con-
stituted a council to revise all bills about to be passed into laws
by the legfislature ; and for that purpose shall assemble themselves
from time to time, when the legislature shall be convened ; for
which, nevertheless, they shall not receive any salary or consid-
eration, under any pretence whatever. And that all bills which
have passed the senate and assembly shall, before they become
laws, be presented to the said council for their revisal and con-
sideration ; and if, upon such revision and consideration, it should
appear improper to the said council, or a majority of them, that
the said bill should become a law of this state, that they return
the same, together with their objections thereto in writing, to the
senate or house of assembly (in whichsoever the same shall have
originated), who shall enter the objections sent down by the coun-
cil at large in their minutes, and proceed to reconsider the said
bill. But if, after such reconsideration, two-thirds of the said
senate or house of assembly shall, notwithstanding the said objec-
tions, agree to pass the same, it shall, together with the objections,
be sent to the other branch of the legislature, where it shall also
be reconsidered, and, if approved by two-thirds of the members
present, shall be a law. And in order to prevent any unnecessary
delays, be it further ordained, that if any bill shall not be re-
turned by the council within ten days after it shall have been
presented, the same shall be a law, unless the legislature shall, by
their adjournment, render a return of the said bill within ten
days impracticable ; in which case the bill shall be returned on
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Evolution of the Constitution
the first day of the meeting of the legislature after the expiration
of the said ten days." (New York Constitution of 1777.)
" No bill or resolve of the senate or house of representatives
shall become a law, and have force as such, until it shall have
been laid before the governor for his revisal ; and if he, upon such
revision, approve thereof, he shall signify his approbation by
signing the same. But if he have any objection to the passing of
such bill or resolve, he shall return the same, together with his
objections thereto, in writing, to the senate or house of representa-
tives, in whichsoever the same shall have originated, who shall
enter the objections sent down by the governor, at large, on their
records, and proceed to reconsider the said bill or resolve ; but if,
after such reconsideration, two-thirds of the said senate or house
of representatives shall, notwithstanding the said objections, agree
to pass the same, it shall, together with the objections, be sent to
the other branch of the legislature, where it shall also be recon-
sidered, and, if approved by two-thirds of the members present,
shall have the force of law ; but in all such cases the vote of both
houses shall be determined by yeas and nays, and the names of
the persons voting for or against the said bill or resolve shall be
entered upon the public records of the commonwealth. And in
order to prevent unnecessary delays, if any bill or resolve shall
not be returned by the governor within five days after it shall
have been presented, the same shall have the force of law."
(Massachusetts Constitution of 1780.)
' ' Every bill which shall have passed the legislature shall be
presented to the President of the United States for his revision.
If he approves it he shall sign it, but if he does not approve it he
shall return it, with his objections, to the house it originated in,
which house, if two-thirds of the members present, notwithstand-
ing the President's objections, agree to pass it, shall send it to
the other house, with the President's objections ; where, if two-
thirds of the members present also agree to pass it, the same shall
become a law ; and all bills sent to the President and not returned
by him within days shall be laws unless the legislature, by
their adjournment, prevent their return, in which case they shall
pot be laws." (Pinckney's Plan, 1787.)
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Evolution from the Charters
• ' Every bill which shall have passed the house of representa-
tives and the senate shall, before it become a law, be presented
to the President of the United States. If he approve he shall
sign it, but if not he shall return it, with his objections, to that
house in which it shall have originated, who shall enter the ob-
jections at large in their journal and proceed to reconsider it. If,
after such reconsideration, two-thirds of that house shall agree to
pass the bill, it shall be sent, together with the objections, to the
other house, by which it shall likewise be reconsidered, and, if
approved by two-thirds of that house, it shall become a law. But
in all such cases the votes of both houses shall be determined by
yeas and nays, and the names of the persons voting for and
against the bill shall be entered on the journal of each house
respectively. If any bill shall not be returned by the President
within ten days (Sundays excepted) after it shall have been pre-
sented to him, the same shall be a law in like manner as if he had
signed it, unless the congress, by their adjournment, prevent its
return, in which case it shall not be a law. Every order, resolu-
tion, or vote, to which the concurrence of the senate and house of
representatives may be necessary (except on a question of ad-
journment) shall be presented to the President of the United
States, and before the same shall take effect shall be approved by
him, or, being disapproved by him, shall be repassed by two-thirds
of the senate and house of representatives, according to the rules
and hmitatlons prescribed in the case of a bill." (The Consti-
tution.)
1 8. The Pardoning Power.
Many experiments were made with the pardoning
power before it was given its present characteristics in
the National Constitution, Beginning with the Virginia
charter of 1609, which gave the power generally to the
company and its officers, the power shifted about for
over a hundred and seventy years from the governor
to the legislature, and from the legislature to the gov-
ernor and his council, or to a board composed of the
167
Evolution of the Constitution
governor, the lieutenant-governor, and the speaker of
the house of representatives, until in the Constitution
it rested with the President alone, except in cases of
impeachment, which had been an exception in some
previous documents.
In the Maryland charter of 1632 Lord Baltimore was
given the right to pardon before judgment, — a right
which no governor of any of our States is now believed
to possess. But it seems to have been thought at one
time in Massachusetts that the bare right to pardon
would carry with it the right to pardon either before or
after judgment, for in the constitution of that State of
1780 the right to pardon before judgment is expressly
prohibited.
Of late years some of our States have returned to the
old method of a board of pardons composed of the
governor and other officers.
Officers of the company to punish and pardon according to
such laws as should be made. In defect of law, in cases of neces-
sity at their discretion. (Virginia Charter of 1609.)
Officers of the company to punish and pardon according to
such laws as should be made. (Massachusetts Charter of 1629.)
The pardoning power given to the proprietor. (Maryland
Charter of 1632.)
The above provision is repeated in the Grant of Maine of 1639.
The pardoning power given to the legislature. (Connecticut
Charter of 1662.)
The above provision is repeated in the Rhode Island Charter
of 1663.
The Carolina Charter of 1663 copies the provision above
given from the Maryland charter of 1632.
The pardoning power given to the proprietor. (Concessions
of East Jersey, 1665.)
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Evolution from the Charters
The Carolina charter of 1665 copies the provision above
given from the Maryland charter of 1632.
The pardoning power g^ven to the palatine and his court.
(Locke's CaroHna Constitution of 1669.)
The pardoning power given to the proprietor. (Pennsylvania
Charter of 168 1.)
The pardoning power given to the governor and his council.
(Virginia Constitution of 1776.)
The pardoning power given to the governor and his council.
(New Jersey Constitution of 1776.)
The pardoning power given to the governor. (Delaware Con-
stitution of 1776.)
The pardoning power given to the governor and his council.
(Pennsylvania Constitution of 1776.)
The pardoning power given to the governor. (Maryland Con-
stitution of 1776.)
The pardoning power given to the governor. (North Carolina
Constitution of 1776.)
The pardoning power gfiven to the legislature. (Georgia Con-
stitution of 1777.)
The pardoning power in treason and murder given to the legis-
lature and in other crimes to the governor. (New York Constitu-
tion of 1777.)
The Vermont constitution of 1777 repeats the provision gfiven
above from the Pennsylvania constitution of 1776.
The governor and council may reprieve for not more than six
months ; the pardoning power given to the governor, lieutenant-
governor, and speaker of the house of representatives. (Rejected
Constitution of Massachusetts of 1778.)
The governor and council may reprieve for not more than six
months ; the pardoning power given to the legislature. (Rejected
Constitution of New Hampshire of 1778.)
The pardoning power, except in cases of impeachment, given
to the governor and council, but no pardon given before convic-
tion shall avail. (Massachusetts Constitution of 1780.)
The above provision is repeated in the New Hampshire con-
stitution of 1 784.
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Evolution of the Constitution
The Vermont constitution of 1786 repeats the provbion given
above from the Pennsylvania constitution of 1 776.
The pardoning power, except in impeachment, given to the
President. (Pinckney's Plan, 1787.)
The pardoning power, except in impeachment, given to the
President. (The Constitution.)
19, President's Menage.
"That he [the President] recommend them y* making of such
Acts, Laws, and Ordinances, as may most tend to y' establishing
them in obedience to our authority ; their own p'servation in peace
and good Governm', and defend against their enemies, and that
they do consider of the fittest ways for raising of taxes, and in
such proportion as may be fit fory* support of y* s"* Governm*."
(Commission for New Hampshire of 1680.)
" That it shall be the duty of the governor to inform the legis-
lature, at every session, of the condition of the State, so far as
may respect his department ; to recommend such matters to their
consideration as shall appear to him to concern its good govern-
ment, welfare, and prosperity." (New York Constitution of
J777-)
" It shall be the duty of the governor to inform the legislature,
at every season of the general court, of the condition of the State,
and from time to time to recommend such matters to their con-
sideration as shall appear to him to concern its good government,
welfare, and prosperity. " (Rejected Constitution of Massachusetts
of 1778.)
"He shall from time to time give information to the legis-
lature of the state of the Union, and recommend to their con-
sideration the measures he may think necessary." (Pinckney's
Plan, 1787.)
' ' He [the President] shall from time to time give to the Con-
gress information of the state of the Union, and recommend to
their consideration such measures as he shall judge necessary
and expedient." (The Constitution.)
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Evolution from the Charters
20, Appointing Power,
The power to fill the offices of government is given
in the National Constitution, in a rather curious way, to
the President and Senate, with a discretion left to Con-
gress to provide by law for appointment to inferior
offices, and the summary shows that this method of
dividing the power between the executive and the legis-
lature was the result of a long development from the
earliest colonial times.
In the governments of Europe it was not common for
the legislature to appoint to office, and in England the
appointing power was in the Crown ; but in the early
colonial charters and constitutions the power was fre-
quently given solely to the legislature. As time went
on, the executive was given a share in it, and it was
divided up among the governor, the council, and the
legislature in varying proportions until the plan adopted
in the Constitution was reached.
Appointing power given to the council. (Virginia Charter of
1609.)
Appointing power given to the general courts, which were com-
posed of the treasurer and company. (Virginia Charter of 161 1-
12.)
Appointing power given to the council, (Charter of New
England of 1620.)
Appointing power given to the general court, which was com-
posed of the governor, assistants, and freemen. (Massachusetts
Charter of 1629.)
Appointing power gfiven to the proprietor. (Maryland Charter
of 1632.)
Appointing power given to the general assembly. (Funda-
mental Orders of Connecticut, 1638.)
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Evolution of the Constitution
Appointing power given to the general assembly. (Connecticut
Charter of 1662.)
The above provision is repeated in the Rhode Island Charter
of 1663.
Appointing power given to the proprietor. (Carolina Charter
of 1663.)
Appointing power given to the governor and his council. (Con-
cessions of East Jersey of 1665.)
Appointing power given to the proprietor. (Pennsylvania
Charter of 1681.)
The provincial council to nominate and the governor to ap-
point. (Pennsylvania Frame of April 2, 1683.)
The provincial council and assembly to nominate and the
governor to appoint. (Pennsylvania Frame of 1683.)
Appointing power given to the governor, with the consent of
the council, as to certain officers, such as judges, sheriffs, etc., and
the other officers to be appointed by the assembly. (Massa-
chusetts Charter of 1691.)
The freemen and justices to nominate and the governor to
appoint sheriffs, coroners, and clerks of the peace. (Pennsyl-
vania Charter of Privileges of 1701.)
Appointing power given to the common council. (Georgia
Charter of 1732.)
Appointing power given to the president-general and grand
council. (Franklin's Plan of 1754.)
Appointing power given to the president and council. (Hutch-
inson's Plan of 1754.)
Appointing power given to the Congress. (Franklin's Articles
of Confederation of 1775.)
Appointing power given to the two houses of the legislature.
(New Hampshire Constitution of 1776.)
Appointing power given to the legislature, except in a few in-
stances, where the president and council could appoint. (South
Carolina Constitution of 1776.)
Appointing power divided between the two houses of as-
sembly and the governor and council. (Virginia Constitution
of 1776.)
172
Evolution from the Charters
Appointing power given to the council and assembly. (New
Jersey Constitution of 1776.)
Appointing power divided among the president, council, and
assembly. (Delaware Constitution of 1776.)
Appointing power divided among the president, council, and
the assembly. (Pennsylvania Constitution of 1776.)
Appointing power given to the governor and council, except in
a few officers. (Maryland Constitution of 1776.)
Appointing power given to the legislature. (North Carolina
Constitution of 1776.)
The governor, with the consent of a council of the senate, to
appoint. (New York Constitution of 1777.)
Appointing power divided among the governor, council, and
the assembly. (Vermont Constitution of 1777.)
Civil officers annually chosen to be appointed by the legisla-
ture ; others by the governor and senate. (Rejected Constitu-
tion of Massachusetts of 1778.)
The appointing power divided between the governor and the
legislature. (South Carolina Constitution of 1778.)
Appointing power given to the general court. (Rejected Con-
stitution of New Hampshire of 1778.)
Appointing power given to Congress. (Articles of Confedera-
tion, 1778.)
Appointing power given to Congress. (Drayton's Articles of
Confederation, 1778.)
Appointing power divided among the governor, council, and
the legislature. (Massachusetts Constitution of 1780.)
Appointing power given to the president and council. (New
Hampshire Constitution of 1784.)
Appointing power divided between the President and the Sen-
ate. (Pinckney's Plan, 1787.)
Appointing power given to the President and Senate, with dis-
cretion to Congress to vest the appointment of inferior officers in
the President alone, in the courts of law, or in the heads of depart-
ments. (The Constitution.)
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Evolution of the Constitution
21. The Judiciary.
The summary in this section is not given because it
shows a line of development leading to a clause in the
Constitution, but merely to show the gradual growth of
a judiciary department in the colonial governments.
The growth of the legislative and executive departments
in colonial times having been shown, it seems necessary
to show the growth of the judiciary in order to complete
the three great departments, even if the line of the
judiciary's development is not carried down to the Con-
stitution.
The reason for not carrying the line down to the Con-
stitution is that the judiciary department in the Consti-
tution seems to have a separate line of development
connected with the development of federalism, and it
will be treated under that head. When federalism, or
the idea of having a national government controlling
the people of all the States, was first developing, it was
not considered necessary to have in it any judiciary de-
partment at all. The judiciary gained an entrance into
federalism very slowly, and at first had jurisdiction only
in cases of captures in war and piracies and felonies on
the high seas, and this Wcis, of course, not necessarily
connected with the gradual rise of a judiciary depart-
ment in the colonial or State governments.
The summary in this section has, accordingly, been
carried only far enough to show the growth and firm
establishment of a judiciary department as a part of
colonial government, and it stops at the Georgia charter
of 1732. The constitutions of 1776 did not usually
provide for a judiciary department, because t^iose which
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Evolution from the Charters
they had had through the colonial period were already
in existence and were satisfactory. Nothing was to be
gained for the cause of the Revolution by creating new
ones, and these constitutions of 1776 were intended to
conform existing institutions to the new conditions of
independence rather than to create out-and-out new
forms of government It will be observed that in the
earliest documents only criminal jurisdiction is given.
Council in Virginia given authority to bind over* and punish
offenders or send them to England for trial. (Virginia Charter,
1611-12.)
Council given authority to correct and punish. (Charter of
New England of 1620.)
Power given to the freemen to pass laws inflicting fines and
imprisonment. (Massachusetts Charter of 1629.)
Power given to the proprietor to establish both civil and crimi-
nal courts. (Maryland Charter of 1632.)
Judicial power given to the magistrates, who were, in effect, the
governor' s council. (Fundamental Orders of Connecticut of 1 638.)
The provision from the Maryland charter of 1632 is sub-
stantially repeated in the grant of Maine of 1639.
The general assembly given power to establish courts, both
civil and criminal. (Connecticut Charter of 1662.)
The above provision is substantially repeated in the Rhode
Island charter of 1663.
The provision from the Maryland charter of 1632 is repeated
in the Carolina charter of 1663.
The general assembly given power to establish courts, and the
governor and his council given power to establish criminal courts.
(Concessions of East Jersey, 1665.)
The provision from the Maryland charter of 1632 is repeated
in the Carolina charter of 1665.
An elaborate system of courts established by Locke's Carolina
constitution. (Locke's Carolina Constitution of 1669.)
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Evolution of the Constitution
The legislature given power to establish courts. (Concessions
of West Jersey, 1677.)
The president and council made a court of both civil and
criminal cases, with right of appeal to England. (Commission
for New Hampshire of 1680.)
The proprietor may establish courts of all kinds, but appeals
maybe taken to England. (Pennsylvania Charter of 1681.)
The power of establishing courts given to the governor and
council. (Pennsylvania Frame of April 2, 1683.)
The general assembly given power to establish courts, and the
governor and council to be a court of probate and administration.
(Massachusetts Charter of 169 1.)
The corporation given power to establish courts. (Georgia
Charter of 1732.)
22. Method of Amending.
At the time of the first settlement of America every
country's form of government was supposed by its
creators and upholders to last forever. As a matter of
fact, however, it was well known that governments
were changed by violence and revolution or by a slow,
almost imperceptible process of change of custom. The
governments of the colonies were often changed by new
charters signed by the king, and it was understood that
the power that created these governments could at any
time alter or abolish them.
But still the fiction was kept up of having each charter
declare that its particular form of government for the
colony should be perpetual, and it was not until William
Penn and his colonists were making their frame of 1683
that the idea seems to have occurred of providing, in the
instrument of government itself, a regular and orderly
method of changing it as time should show the necessity
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Evolution from the Charters
for change. It was a natural thought, and there is no
evidence that either Penn or his people believed that
they were suggesting anything wonderful. But their
method, as the summary shows, was repeated and re-
peated until, after running through many of. the consti-
tutions of I Tjd, the Articles of Confederation, and other
American documents, it found its place in the National
Constitution.
It is generally believed to be a very important part of
the Constitution, giving the elasticity which secures per-
manence and prevents revolution. It has already been
used to make most far-reaching changes, and will prob-
ably be used for the same purpose again. As it stands
in the Constitution, it is generally regarded as peculiarly
American : so that it is interesting to trace its American
growth for over a hundred years.
There is a curious resemblance between the clause in
the Constitution and the similar clause in the Pennsyl-
vania Charter of Privileges of 1701. The Pennsylvania
document provides that it may be amended by the con-
sent of the governor and six parts of seven of the assem-
bly, but that the article relating to liberty of conscience
shall never be altered. The National Constitution pro-
vides for amendment by consent of three-fourths of the
States, but, like the Pennsylvania Charter of Privileges,
adds the exceptions that no State without its consent
shall be deprived of its equal suffrage in the Senate, and
that prior to 1808 no amendment shall affect the right
to import slaves or affect direct taxation.
"That no act, law, or ordinance whatsoever, shall at anytime
hereafter, be made or done by the Governor of this province, his
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Evolution of the Constitution
heirs or assigns, or by the freemen in the provincial Council, or
the General Assembly, to alter, change, or diminish the form, or
effect, of this charter, or any part, or clause thereof, or contrary
to the true intent and meaning thereof, without the consent of the
Governor, his heirs, or assigns, and six parts of seven of the said
freemen in provincial Council and General Assembly.' ' (Penn-
sylvania Frame of April 2, 1683.)
The above provision is repeated in the Pennsylvania Frame of
1683 and in the Pennsylvania Frame of 1696.
"AND no Act, Law or Ordinance whatsoever, shall at any
Time hereafter, be made or done, to alter, change or diminish the
Form or Effect of this Charter, or of any Part or Clause therein,
contrary to the true Intent and Meaning thereof, without the Con-
sent of the Governor for the Time being, and Six Parts of Seven
of the Assembly met.
" BUT because the Happiness of Mankind depends so much
upon the Enjoying of Liberty of their Consciences as aforesaid, I
do hereby solemnly declare, promise and grant, for me, my Heirs
and Assigns, That the First Article of this Charter relating to
Liberty of Conscience, and every Part and Clause therein, ac-
cording to the true Intent and Meaning thereof, shall be kept and
remain, without any Alteration, inviolably for ever." "(Pennsyl-
vania Charter of Privileges of 170 1.)
" As all new institutions may have imperfections which only
time and experience can discover, it is agreed that the general
congress, from time to time, shall propose such amendments of
this constitution as may be found necessary, which, being ap-
proved by a majority of the colony assemblies, shall be equally
binding with the rest of the articles of this confederation. ' ' (Frank-
lin's Articles of Confederation, 1775.)
" No article of the declaration of rights and fundamental rules
of this State, agreed to by this convention, nor the first, second,
fifth (except that part thereof that relates to the right of suffrage),
twenty-sixth, and twenty-ninth articles of this constitution ought
ever to be violated on any pretence whatever.
" No other part of this constitution shall be altered, changed,
or diminished without the consent of five parts in seven of the
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Evolution from the Charters
assembly and seven members of the legislative council." (Dela-
ware Constitution of 1776.)
" The said council of censors shall also have power to call a
convention, to meet within two years after their sitting, if there
appear to them an absolute necessity of amending any article of
the constitution which may be defective, explaining such as may
be thought not clearly expressed, and of adding such as are neces-
sary for the preservation of the rights and happiness of the people :
But the articles to be amended, and the amendments proposed,
and such articles as are proposed to be added or abolished, shall
be promulgated at least six months before the day appointed for
the election of such convention, for the previous consideration of
the people, that they may have an opportunity of instructing their
delegates on the subject." (Pennsylvania Constitution of 1776.)
' ' That this Form of Government, and the Declaration of Rights,
and no part thereof, shall be altered, changed, or abolished,
unless a bill so to alter, change or abolish the same shall pass the
General Assembly, and be published at least three months before
a new election, and shall be confirmed by the General Assembly,
after a new election of Delegates, in the first session after such
new election ; provided that nothing in this form of government,
which relates to the eastern shore particularly, shall at any time
hereafter be altered, unless for the alteration and confirmation
thereof at least two-thirds of all the members of each branch of
the General Assembly shall concur." (Maryland Constitution of
1776.)
' ' No alteration shall be made in this constitution without peti-
tions from a majority of the counties, and the petitions from each
county to be signed by a majority of voters in each county within
this State ; at which time the assembly shall order a convention to
be called for that purpose, specifying the alterations to be made,
according to the petitions preferred to the assembly by the ma-
jority of the counties as aforesaid." (Georgia Constitution of
The Vermont constitution of 1777 repeats the provision gfiven
above from the Pennsylvania constitution of 1776.
"That no part of this constitution shall be altered without
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Evolution of the Constitution
notice being previously given of ninety days, nor shall any part
of the same be changed without the consent of a majority of the
membdl-s of the senate and house of representatives." (South
Carolina Constitution of 1778.)
"The general court shall have no power to alter any part of
this constitution, ^and, in case they should concur in any proposed
alteration, amendment, or addition, the same being agreed to by
a majority of the people, shall become valid." (Rejected Con-
stitution of Massachusetts of 1778.)
' ' Nor shall any alteration at any time hereafter be made in any
of them unless such alteration be agreed to in a congress of the
United States and be afterwards confirmed by the legislatures of
every State." (Articles of Confederation, 1778.)
"The articles of this confederation shall be strictly binding
upon, and inviolably observed by, the parties interested therein ;
nor shall any alteration be made in them, or any of them, unless
such alteration shall be agreed to in the congress and allowed by
the legislature of every State in the confederacy." (Drayton's
Articles of Confederation, 1778.)
"In order the more effectually to adhere to the principles of
the constitution and to correct those violations which by any
means may be made therein, as well as to form such alterations
as from experience shall be found necessary, the general court
which shall be in the year of our Lord one thousand seven hun-
dred and ninety-five shall issue precepts to the selectmen of the
several towns, and to the assessors of the unincorporated planta-
tions, directing them to convene the qualified voters of their re-
spective towns and plantations for the purpose of collecting their
sentiments on the necessity or expediency of revising the consti-
tution in order to amendments.
• ' And if it shall appear, by the returns made, that two-thirds
of the qualified voters throughout the State, who shall assemble
and vote in consequence of the said precepts, are in favor of such
revision or amendment, the general court shall issue precepts, or
direct them to be issued from the secretary's office, to the several
towns to elect delegates to meet in convention for the purpose
aforesaid.
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Evolution from the Charters
"And said delegates to be chosen in the same manner and
proportion as their representatives in the second branch of the
legislature are by this constitution to be chosen." (MassaAusetts
Constitution of 1780.)
"To preserve an effectual adherence to the principles of the
constitution and to correct any violations thereof, as well as to
make such alterations therein as from experience may be found
necessary, the general court shall, at the expiration of seven years
from the time this constitution shall take effect, issue precepts, or
direct them to be issued from the secretary's office, to the several
towns and incorporated places, to elect delegates to meet in con-
vention for the purposes aforesaid : the said delegates to be chosen
in the same manner and proportioned as the representatives to
the general assembly ; provided that no alteration shall be made
in this constitution before the same shall be laid before the towns
and unincorporated places and approved by two-thirds of the
qualified voters present and voting upon the question." (New
Hampshire Constitution of 1784.)
"That provision ought to be made for the amendment of the
articles of union whenever it shall seem necessary, and that the
assent of the national legislature ought not to be required thereto."
(Randolph's Plan of 1787.)
"If two-thirds of the legislatures of the States apply for the
same, the legislature of the United States shall call a convention
forthe purpose of amending the Constitution ; or, should Congress,
with the consent of two-thirds of each house, propose to the States
amendments to the same, the agreement of two-thirds of the
legislatures of the States shall be sufficient to make the said
amendments parts of the Constitution. ' ' (Pinckney' s Plan, 1 787.)
" The congress, whenever two-thirds of both houses shall deem
it necessary, shall propose amendments to this constitution, or, on
the application of the legislatures of two-thirds of the several
states, shall call a convention for proposing amendments, which
in either case shall be valid to all intents and purposes as part of
this constitution when ratified by the legislatures of three-fourths
of the several states, or by conventions in three-fourths thereof, as
the one or the other mode of ratification may be proposed by the
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Evolution of the Constitution
congress ; provided that no amendment which may be made
prior to the year one thousand eight hundred and eight shall in
any manner affect the first and fourth clauses in the ninth section
of the first article, and that no state, without its consent, shall be
deprived of its equal suffrage in the senate." (The Constitution.)
23. Prevention of Unconstitutional Laws.
How to prevent violations of a written constitution
must have been among the first questions that occurred
to the early draughtsmen of those instruments. In the
case of the colonial charters violations could be punished
by forfeiture of the charter, and in many of the colonies the
laws had to be submitted to the king for his approval.
But when written constitutions were made by the peo-
ple other safeguards were necessary, and the history of
the experiments and struggles to invent something that
would be self-acting is instructive.
The first written constitution made by the people of
this country was the Fundamental Orders of Connec-
ticut of 1638, but no attempt was made in it to provide
a remedy for infringement. The subject may have been
discussed, — it is difficult to suppose that it was not dis-
cussed,— but, as the problem was not even partially solved
until one hundred and fifty years afterwards, the silence
of our first constitution-makers can be readily excused.
Five years afterwards, in 1643, when the New Eng-
land Union was formed, its framers not only considered
the question, but attempted a slight and cautious solution
of it If any one of the confederated colonies should
break the articles of union, "such breach of agreement,
or injury," they said, "shall be duly considered and
ordered by the commissioners."
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Evolution from the Charters
In other words, they gave the commissioners power to
devise a remedy or punishment when a case of infringe-
ment should arise, which was hardly a solution *of the
question, but rather a shifting of the solution to the
shoulders of the commissioners. It was a beginning,
nevertheless, for it at least gave the commissioners power
to decide when an infringement had occurred, and the
rest depended on their own skill and sagacity. It is,
indeed, very interesting to see this first extremely care-
ful step of our people in the solution of one of their
most difficult problems, and I do not suppose that the
most fanatical advocate of foreign sources would under-
take to say that they were consciously imitating any-
thing in the government of either England or Holland.
The proprietors of East Jersey were the next people
who were bold enough to face the difficulty, by providing
in their Concessions of 1665 that the laws of the assem-
bly should not be contrary to the Concessions, and
" especially that they be not repugnant to the article for
liberty of conscience." This seems very inadequate, but
it Wcis a move in the right direction, because it laid down
the fundamental principle that the laws must conform to
the constitution.
Four years later, Locke, in his Carolina constitution
of 1669, went farther, and provided that a law, when
suspected of unconstitutionality on its passage, could be
protested and must then be reconsidered ; and, as an
additional safeguard, he arranged to have all laws cease
operation at the end of a hundred years from their
passage. But he was outdone by the proprietors of
West Jersey, who in their Concessions of 1677 declared
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that any member of the legislature who should move or
incite any to move an infringement of the constitution
should be proceeded against as a traitor.
Neither Locke nor the proprietors of West Jersey
succeeded in contriving anything that was of much
avail, and the summary of the subsequent documents
shows for the most part mere variations of previous
attempts. The violent method of the proprietors of
West Jersey was, however, moderate compared to Dray-
ton's suggestions in his articles of confederation. If
Congress violated the Constitution he would allow the
States to secede, and if a State violated the Constitution
it might be fined or placed under ban, and, if still con-
tumacious, punished by "the utmost vigor of arms,"
— a method which certainly had the merit of thorough-
ness.
Among all these attempts there was only one which
pointed towards the final goal, and this was in the Penn-
sylvania Frame of 1683, where William Penn announced
that if anything was procured contrary to the constitution
it should be held of no force or effect. In other words,
an unconstitutional law was to be void ; and if he had
taken the next step and said that the judges should have
power to declare it void when a case involving the law
came before them, he would have solved the problem as
we have solved it under the National Constitution.
The framers of the Constitution took that step, but,
although it was only one step, a hundred years' ex-
perience was required after Penn's Frame of 1683 be-
fore it could be taken. The way in which the power
to declare laws unconstitutional and void was gradually
184
Evolution from the Charters
given to the judiciary in the national government as
well as in the governments of the States has been very
fully discussed, of recent years, in Mr. Brinton Coxe's
"Judicial Power and Unconstitutional Legislation" and
in Professor Thayer's " Origin and Scope of the Ameri-
can Doctrine of Constitutional Law."
What appears to be the first instance of such power
in the judiciary is found in Virginia in the case of Josiah
Philips, in the year 1778, but the case is so obscurely
reported that we can only infer that the court believed
themselves possessed of the power. In the next case,
however, — Commonwealth vs. Caton, in 1782, also a
Virginia case, — the court openly announce that they
have "power to declare any resolution or act of the
legislature, or either branch of it, to be unconstitutional
and void." From this point the doctrine grew, and the
cases, as originally collected by Mr. William M. Meigs,
are very fully treated in Part II., Chapter XXIII., of Mr.
Coxe's "Judicial Power and Unconstitutional Legisla-
tion."
The doctrine was denied in some States, and it was
not firmly established until long after the Constitution
had gone into operation. But in the year 1787, when
the Constitution was framed, it was sufficiently well
known to be accepted as a suggestion, and Gerry, one
of the members of the convention, said that " in some
of the States the judges had actually set aside laws as
being against the Constitution."
The framers of the Constitution, of course, relied
largely for its preservation on the good sense of the
people, short terms of office, the mutual checking of the
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Evolution of the Constitution
two houses of Congress, and the President's veto. But
they inserted a clause declaring that the judicial power
should extend to all cases arising under the Constitu-
tion, laws, and treaties, and another clause declaring
that the Constitution and such laws as were made in
pursuance of it should be the supreme law of the land.
These clauses, coupled with the evident and implied
necessity, have been held sufficient warrant for the courts
to declare laws unconstitutional. (Marbury vs. Madison,
I Cranch, 137 ; Coxe's "Judicial Power and Unconstitu-
tional Legislation," prefatory note, 5.)
All we know of the origin of this doctrine of the power
of the judiciary is that it first appeared in Virginia in an
obscure form and gradually grew and spread. It seems
to have originated, like our other forms of government,
in circumstances and necessities, and was adopted for
the reason that it was obviously convenient It was not
a common doctrine in Europe. On the contrary, most
of the European governments expressly denied it But,
in order to show that it might possibly have a European
source, Mr. Coxe has given at length and most learnedly
all the instances of something similar in the ancient laws
of England, France, Germany, and other countries. He
gives not a particle of proof to show that the origina-
tors of the doctrine in this country were guided by, or
even knew of, any of these foreign forms, and, as they
are all very recondite and ancient, it is not likely that
they knew of them.
In fact, in the Virginia case of Commonwealth vs.
Caton (4 Call, 5), one of the judges expressly says that
they could receive no light from foreign sources :
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Evolution from the Charters
"The constitutions of other governments in Europe or else-
where seem to throw little light upon this question, since we have
a written record of that which the citizens of this State have adopted
as their social compact, and beyond which we need not extend our
researches." (4 Call, 17.)
When Gerry mentioned the subject in the convention
which framed the Constitution, he referred not to foreign
sources, but to the instances in our own country. In
the Virginia case of Commonwealth vs. Caton the judges
work out the problem by the natural process that any
law violating the Constitution must necessarily be void,
which was the same principle that William Penn had
announced in his Frame of 1683. The Virginia judges
merely take the further step of announcing that the
judiciary must necessarily have the power of declaring
such a law void in any case which brings it before them.
Any violation of the union to be considered by the commis-
sioners. (New England Union of 1643.)
A proviso that the laws be not against the interest of the pro-
prietors or contrary to the constitution. (Concessions of East Jer-
sey, 1665.)
Laws suspected of unconstitutionality may be protested and re-
considered, and all laws shall cease their operation at the end of
a hundred years, (Locke's Carolina Constitution of 1669.)
The legislature not to make laws which contradict the consti-
tution, and those members of the legislature who take part in
making such laws to be punished as traitors. (Concessions of
West Jersey of 1677.)
Anything procured contrary to the constitution shall be void.
(Pennsylvania Frame of April 2, 1683.)
The above provision is repeated in the Pennsylvania Frame of
1683 and in the Pennsylvania charter of privileges of 1701.
No part of the constitution, with certain exceptions, ought ever
to be violated. (Delaware Constitution of 1776.)
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Evolution of the Constitution
The legislature cannot alter or infringe any part of the consti-
tution, and a council of censors is provided to protect the consti-
tution from violation. (Pennsylvania Constitution of 1776.)
A proviso that the laws be not repugnant to the constitution.
(Georgia Constitution of 1777.)
The Vermont constitution of 1777 repeats substantially the pro-
visions from the Pennsylvania constitution of 1776.
The legislature shall not have power to alter or infringe any
part of the constitution. (Rejected Constitution of Massachusetts
of 1778.)
If constitution violated by Congress, the States may secede. If
a State violates the constitution, it may be fined and obedience
compelled by force of arms. (Drayton's Articles of Confedera-
tion, 1778.)
A proviso that the laws be not unconstitutional. (Massachusetts
Constitution of 1780.)
The above provision from the Massachusetts constitution of
1780 is repeated in the New Hampshire constitution of 1784.
The Vermont constitution of 1786 repeats the provision given
above from the Pennsylvania constitution of 1776, with a change
as to the number and manner of electing the censors.
The national legislature to negative unconstitutional laws
passed by the States, and the executive and some of the judges
to be a council, with a modified veto on unconstitutional acts of
Congress. (Randolph's Plan, 1787.)
Laws pursuant to the Constitution to be the supreme law of the
land. (Pinckney's Plan, 1787.)
The judicial power to extend to all cases arising under the
constitution and laws, and the constitution and laws made in
pursuance of it to be the supreme law of the land. (The Con-
stitution.)
24. Patents and Inventions.
"That the governor and provincial council shall .... en-
courage and reward the authors of useful sciences and laudable
inventions in the said province." (Pennsylvania Frame of April
2. 1683.)
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Evolution from the Charters
The above provision is repeated in the Pennsylvania Frame of
1683 and in the Pennsylvania Frame of 1696.
' ' The congress shall have power to promote the progress of sci-
ence and useful arts by securing for limited times to authors and
inventors the exclusive right to their respective writings and dis-
coveries. ' ' (The Constitution. )
25. Naturalization.
"And We do, for Us, our Heirs and Successors, further give
and grant to the said Treasurer and Company, or their Successors
forever, that the said Treasurer and Company, or the greater Part
of them for the Time being, so in a full and general Court assem-
bled as aforesaid, shall and may from Time to Time, and at all
times forever hereafter, elect, choose and admit into their Com-
pany, and Society, any Person or Persons, as well Strangers and
AHens born in any Part beyond the Seas wheresoever, being in
Amity with us, as our natural Liege Subjects born in any our
Realms and Dominions : And that all such Persons so elected,
chosen, and admitted to be of the said Company as aforesaid, shall
thereupon be taken, reputed, and held, and shall be free Members
of the said Company, and shall have, hold, and enjoy all and
singular Freedoms, Liberties, Franchises, Privileges, Immunities,
Benefits, Profits, and Commodities whatsoever, to the said Com-
pany in any Sort belonging or appertaining, as fully, freely and
amply as any other Adventurers now being, or which hereafter
at any Time shall be of the said Company, hath, have, shall,
may, might, or ought to have and enjoy the same to all Intents
and Purposes whatsoever." (Virginia Charter of 161 1-12.)
" By act as aforesaid to give unto all strangers as to them shall
seem meet a naturalization, and all such freedoms and privileges
within the said province as to his Majesty's subjects do of right
belong, they swearing or subscribing as aforesaid, which said
strangers so naturalized and privileged shall be in all resjsects ac-
counted in the said province as the king's natural subjects."
(Concessions of East Jersey, 1665.)
"Whatsoever alien shall, in this form, before any precinct
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Evolution of the Constitution
register, subscribe these fundamental constitutions, shall be thereby
naturalized." (Locke's Carolina Constitution of 1669.)
' ' The legislature of the United States shall have the power to
establish uniform rules of naturalization." (Pinckney's Plan,
1787.)
"The congress shall have power to establish a uniform rule
of naturalization. ' ' (The Constitution.)
26. Religious Liberty.
The quotations under this section show the begin-
ning of religious liberty and the ideas that have at
different times prevailed as to exactly what religious
liberty was.
In colonial times and for some time after the Revolu-
tion a large part of our people were convinced that the
Roman Church was unalterably opposed to both civil
and religious liberty, and that it would destroy them
both if opportunity offered. Accordingly we find that
liberty of conscience did not always include papists, as
they were called, and not infrequently in the constitu-
tions of I TJ^ the members of the Roman obedience are
excluded from holding public office. The most sweeping
and carefully worded provision of this sort was in the
North Carolina constitution of 1776, which declared
that no person could hold office who denied the being
of God or the truth of the Protestant religion, or who
held " religious principles incompatible with the freedom
and safety of the State."
Religious liberty did not always include what some
have called "irreligious liberty," and we find that in
several instances atheists and infidels are left without
protection. Perhaps the most curious provision is in
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Evolution from the Charters
the New Hampshire commission of 1680, which allows
liberty of conscience to all Protestants, and commands
that the Church of England be "particularly counte-
nanced and encouraged."
" That our royall will and pleasure is, that noe person within
the sayd colonye, at any tyme hereafter, shall bee any wise mo-
lested, punished, disquieted, or called in question, for any differ-
ences in opinione in matters of religion, and doe not actually
disturb the civill peace of our sayd colony ; but that all and everye
person and persons may, from tyme to tyme, and at all tymes
hereafter, freelye and fullye have and enjoye his and theire owne
judgments and consciences, in matters of religious concernments,
throughout the tract of lande hereafter mentioned ; they behaving
themselves peaceablie and quietlie, and not useing this libertie
to lycentiousnesse and profanenesse, nor to the civill injurye or
outward disturbeance of others ; any lawe, statute, or clause,
therein contayned, or to bee contayned, usage or custome of this
realme, to the contrary hereof, in any wise, notwithstanding."
(Rhode Island Charter of 1663.)
" That no person qualified as aforesaid within the said province
at any time shall be anyways molested, punished, disquieted or
called in question for any difference in opinion or practice in
matters of religious concernments, who do not actually disturb
the civil peace of the said province, but that all and every such
person and persons may from time to time and at all times truly
and fully have and enjoy his and their judgments and consciences
in matters of religion throughout all the said province ; they be-
having themselves peaceably and quietly and not using this liberty
to licentiousness, nor to the civil injury or outward disturbance of
others ; any law, statute, or clause contained or to be contained,
usage or custom of this realm of England to the contrary thereof
in any wise notwithstanding." (Concessions of East Jersey,
1665.)
• • No person whatsoever shall disturb, molest, or persecute
another for his speculative opinions in religion, or his way of
worship." (Locke's Carolina Constitution of 1669.)
191
Evolution of the Constitution
" That no men, nor number of men upon earth, hath power or
authority to rule over men's consciences in religious matters;
therefore it is consented, agreed and ordained, that no person or
persons whatsoever within the said province, at any time or times
hereafter, shall be any ways upon any pretence whatsoever, called
in question, or in the least punished or hurt, either in person,
estate, or privilege, for the sake of his opinion, judgment, faith or
worship towards God in matters of religion. But that all and
every such person and persons may from time to time, and at all
times, freely and fully have and enjoy his and their judgments
and the exercise of their consciences in matters of religious wor-
ship throughout all the said province." (Concessions of West
Jersey, 1677.)
"We do hereby require and comand that liberty of con-
science shall be allowed unto all protestants ; that such especially
as shall be conformable to y' rites of y' Church of Eng** shall be
particularly countenanced and encovu-aged." (Commission for
New Hampshire of 1680.)
' ' We do by these presents for us, our heirs and successors,
grant, establish and ordain that forever hereafter there shall be
liberty of conscience allowed in the worship of God to all Chris-
tians (except papists) inhabiting, or which shall inhabit, or be
resident within our said province or territory." (Massachusetts
Charter of 1 691.)
"That no Person or Persons, inhabiting in this Province or
Territories, who shall confess and acknowledge One almighty God,
the Creator, Upholder and Ruler of the World ; and profess him
or themselves obliged to live quietly under the Civil Government,
shall be in any Case molested or prejudiced, in his or their Person
or Estate, because of his or their conscientious Persuasion or Prac-
tice, nor be compelled to frequent or maintain any religious Wor-
ship, Place or Ministry, contrary to his or their Mind, or to do or
suffer any other Act or Thing, contrary to their religious Per-
suasion.
"AND that all Persons who also profess to believe \n Jesus
Christ, the Saviour of the World, shall be capable (notwithstand-
ing their other Persuasions and Practices in Point of Conscience
192
Evolution from the Charters
and Religion) to serve this Government in any Capacity, both
legislatively and executively, he or they solemnly promising, when
lawfully required. Allegiance to the King as Sovereign, and
Fidelity to the Proprietary and Governor, and taking the Attests
as now established by the Law made at New- Castle, in the Year
One Thousand and Seven Hundred, entitled, An Act directing
the Attests of several Officers and Ministers, as now amended and
confirmed this present Assembly." (Pennsylvania Charter of
Privileges of 1701.)
"And for the greater ease and encouragement of our loving
subjects and such others as shall come to inhabit in our said
colony, we do by these presents, for us, our heirs and successors,
grant, establish and ordain, that forever hereafter there shall be
a liberty of conscience allowed in the worship of God to all per-
sons inhabiting, or which shall inhabit or be resident within our
said province, and that all such persons, except papists, shall
have a free exercise of religion, so they be contented with the
quiet and peaceable enjoyment of the same, not giving offence or
scandal to the government." (Georgia Charter of 1732.)
"That religion, or the duty which we owe to our Creator, and
the manner of discharging it, can be directed only by reason and
conviction, not by force or violence ; and therefore all men are
equally entitled to the free exercise of religion, according to the
dictates of conscience ; and that it is the mutual duty of all to
practice Christian forbearance, love, and charity towards each
other." (Virginia Bill of Rights of 1776.)
"That no person shall ever, within this Colony, be deprived of
the inestimable privilege of worshipping Almighty God in a man-
ner agreeable to the dictates of his own conscience ; nor, under
any pretence whatever, be compelled to attend any place of wor-
ship, contrary to his own faith and judgment ; nor shall any person
within this Colony ever be obliged to pay tithes, taxes, or any
other rates for the purpose of building or repairing any other
church or churches, place or places of worship, or for the main-
tenance of any minister or ministry, contrary to what he believes
to be right or has deliberately or voluntarily engaged himself to
perform.
13 193
Evolution of the Constitution
" That there shall be no estabhshment of any one religious sect
in this Province in preference to another ; and that no Protestant
inhabitant of this Colony shall be denied the enjoyment of any
civil right, merely on account of his religious principles ; but that
all persons, professing a belief in the faith of any Protestant sect,
who shall demean themselves peaceably under the government,
as hereby established, shall be capable of being elected into any
office of profit or trust, or being a member of either branch of the
Legislature, and shall fully and freely enjoy every privilege and
immunity enjoyed by others their fellow-subjects." (New Jersey
Constitution of 1776.)
• • There shall be no establishment of any one religious sect in
this State in preference to another ; and no clergyman or preacher
of the gospel, of any denomination, shall be capable of holding
any civil office in this State, or of being a member of either of the
branches of the legislature, while they continue in the exercise of
the pastoral function," (Delaware Constitution of 1776.)
" That all men have a natural and unalienable right to worship
Almighty God according to the dictates of their own consciences
and understanding : And that no man ought or of right can be
compelled to attend any reHgious worship, or erect or support
any place of worship, or maintain any ministry, contrary to, or
against, his own free will and consent : Nor can any man, who
acknowledges the being of a God, be justly deprived or abridged
of any civil right as a citizen, on account of his religious sentiments
or peculiar mode of religious worship : And that no authority can
or ought to be vested in, or assumed by any power whatever, that
shall in any case interfere with, or in any manner controul, the
right of conscience in the free exercise of religious worship."
(Pennsylvania Constitution of 1776.)
" That, as it is the duty of every man to worship God in such
manner as he thinks most acceptable to him, all persons profess-
ing the Christian religion are equally entitled to protection in their
religious liberty ; wherefore no person ought by any law to be
molested in his person or estate on account of his religious per-
suasion or profession, or for his religious practice ; unless, under
colour of religion, any man shall disturb the good order, peace, or
194
Evolution from the Charters
safety of the State, or shall infringe the laws of morality, or injure
others, in their natural, civil, or religious rights ; nor ought any
person to be compelled to frequent or maintain, or contribute,
unless on contract, to maintain any particular place of worship, or
any particular ministry ; yet the Legislature may, in their discretion,
lay a general and equal tax for the support of the Christian re-
ligion ; leaving to each individual the power of appointing the
payment over of the money, collected from him, to the support
of any particular place of worship or minister, or for the benefit
of the poor of his own denomination, or the poor in general of
any particular county : but the churches, chapels, glebes, and all
other property now belonging to the church of England, ought to
remain to the church of England forever. And all acts of Assem-
bly, lately passed, for collecting monies for building or repairing
particular churches or chapels of ease, shall continue in force and
be executed, unless the Legislature shall, by act, supersede or
repeal the same : but no county court shall assess any quantity of
tobacco, or sum of money, hereafter, on the application of any
vestry-men or church-wardens ; and every encumbent of the
church of England, who hath remained in his parish, and per-
formed his duty, shall be entitled to receive the provision and
support established by the act entitled • An act for the support of
the clergy of the church of England, in this Province,' till the
November court of this present year, to be held for the county in
which his parish shall lie, or partly lie, or for such time as he
hath remained in his parish, and performed his duty." (Mary-
land Declaration of Rights of 1776.)
' • That all men have a natural and unalienable right to wor-
ship Almighty God according to the dictates of their own con-
sciences
"That no person, who shall deny the being of God or the
truth of the Protestant religion, or the divine authority either of
the Old or New Testaments, or who shall hold religious principles
incompatible with the freedom and safety of the State, shall be
capable of holding any office or place of trust or profit in the civil
department within this State
* ' That there shall be no establishment of any one religious
19s
Evolution of the Constitution
church or denomination in this State, in preference to any other ;
neither shall any person, on any pretence whatsoever, be com-
pelled to attend any place of worship contrary to his own faith or
judgment, nor be obliged to pay for the purchase of any glebe, or
the building of any house of worship, or for the maintenance of
any minister or ministry, contrary to what he believes right, or
has voluntarily and personally engaged to perform ; but all per-
sons shall be at liberty to exercise their own mode of worship : —
Provided, That nothing herein contained shall be construed to
exempt preachers of treasonable or seditious discourses from
legal trial and punishment." (North Carolina Constitution of
1776.)
"All persons whatever shall have the free exercise of their
religion, provided it be not repugnant to the peace and safety of
the State, and shall not, unless by consent, support any teacher
or teachers except those of their own profession." (Georgia
Constitution of 1777.)
"And whereas we are required, by the benevolent principles
of rational liberty, not only to expel civil tyranny, but also to
guard against that spiritual oppression and intolerance wherewith
the bigotry and ambition of weak and wicked priests and princes
have scourged mankind, this convention doth further, in the
name and by the authority of the good people of this State, ordain,
determine, and declare, that the free exercise and enjoyment of
religious profession and worship, without discrimination or prefer-
ence, shall forever hereafter be allowed, within this State, to all
mankind : Provided, That the liberty of conscience, hereby
granted, shall not be so construed as to excuse acts of licentious-
ness, or justify practices inconsistent with the peace or safety of
I this State." (New York Constitution of 1777.)
"That all men have a natural and unalienable right to wor-
ship Almighty God, according to the dictates of their own con-
sciences and understanding, regulated by the word of God ; and
that no man ought, or of right can be compelled to attend any
religious worship, or erect or support any place of worship, or
maintain any minister, contrary to the dictates of his conscience ;
nor can any man who professes the Protestant religion be justly
196
Evolution from the Charters
deprived or abridged of any civil right, as a citizen, on account
of his reHgious sentiment, or pecuUar mode of reUgious worship,
and that no authority can, or ought to be vested in, or assumed
by, any power whatsoever, that shall, in any case, interfere with,
or in any manner controul, the rights of conscience, in the free
exercise of religious worship : nevertheless, every sect or denomi-
nation of people ought to observe the Sabbath, or the Lord's day,
and keep up, and support, some sort of religious worship, which
to them shall seem most agreeable to the revealed will of God."
(Vermont Constitution of 1777.)
" No person, unless of the Protestant religion, shall be gov-
ernor, lieutenant-governor, a member of the senate or of the
house of representatives, or hold any judiciary employment
within this State
"The free exercise and enjoyment of religious profession and
worship shall forever be allowed to every denomination of Prot-
estants within this State." (Rejected Constitution of Massa-
chusetts of 1778.)
"That all persons and religious societies who acknowledge
that there is one God, and a future state of rewards and punish-
ments, and that God is publicly to be worshipped, shall be freely
tolerated. The Christian Protestant religion shall be deemed,
and is hereby constituted and declared to be, the estabhshed
religion of this State. That all denominations of Christian Prot-
estants in this State, demeaning themselves peaceably and faith-
fully, shall enjoy equally religious and civil privileges.
" No person shall be eligible to a seat in the said senate unless
he be of the Protestant religion. No person shall be eligible to
sit in the house of representatives unless he be of the Protestant
religion." (South Carolina Constitution of 1778.)
"The future legislature of this State shall make no laws to
infringe the rights of conscience or any other of the natural,
unalienable rights of men, or contrary to the laws of God or
against the Protestant religion
"All the male inhabitants of the State of lawful age, paying
taxes and professing the Protestant religion, shall be deemed legal
voters in choosing councillors and representatives." [A property
197
Evolution of the Constitution
qualification was also added.] (Rejected Constitution of New
Hampshire of 1778.)
" It is the right as well as the duty of all men in society, pub-
licly and at stated seasons, to jvorship the Supreme Being, the
great Creator and Preserver of the universe. And no subject
shall be hurt, molested, or restrained, in his person, liberty, or
estate, for worshipping God in the manner and season most agree-
able to the dictates of his own conscience, or for his religious pro-
fession or sentiments, provided he doth not disturb the public
peace or obstruct others in their religious worship. . . .
"Therefore, to promote their happiness and to secure the good
order and preservation of their government, the people of this com-
monwealth have a right to invest their legislature with power to
authorize and require, and the legislature shall, from time to
time, authorize and require the several towns, parishes, precincts,
and other bodies-politic or religious societies to make suitable
provision, at their own expense, for the institution of the public
worship of God and for the support and maintenance of public
Protestant teachers of piety, religion, and morality in all cases
where such provision shall not be made voluntarily. . . .
"And the people of this commonwealth have also a right to,
and do, invest their legislature with authority to enjoin upon all
the subjects an attendance upon the instructions of the public
teachers aforesaid, at stated times and seasons, if there be any
on whose instructions they can conscientiously and conveniendy
attend." (Massachusetts Constitution of 1780.)
" Every individual has a natural and unalienable right to wor-
ship GOD according to the dictates of his own conscience and
reason ; and no subject shall be hurt, molested, or restrained in
his person, liberty or estate for worshipping GOD, in the manner
and season most agreeable to the dictates of his own conscience,
or for his religious profession, sentiments or persuasion ; provided
he doth not disturb the public peace, or disturb others, in their
religious worship.
"As morality and piety, rightly grounded on evangelical prin-
ciples, will give the best and greatest security to government, and
will lay in the hearts of men the strongest obligations to due sub-
198
Evolution from the Charters
jection ; and as the knowledge of these is most likely to be propa-
gated through a society by the institution of the public worship of
the DEITY, and of public instruction in morality and religion ;
therefore, to promote those important purposes, the people of this
state have a right to impower, and do hereby fully impower the
legislature to authorize from time to time, the several towns,
parishes, bodies-corporate, or religious societies within this state,
to make adequate provision at their own expence, for the support
and maintenance of public Protestant teachers of piety, religion
and morality
"That no person shall be capable of being elected a senator
who is not of the Protestant religion." (New Hampshire Consti-
tution of 1784.)
The Vermont constitution of 1786 repeats the provision given
above from the Pennsylvania constitution of 1776.
" The legislature of the United States shall pass no law on the
subject of religion." (Pinckney's Plan, 1787.)
" No religious test shall ever be required as a qualification to
any office or pubUc trust under the United States." (The Consti-
tution.)
"Congress shall make no law respecting an establishment of
religion or prohibiting the free exercise thereof." (P'irst Amend-
ment to the Constitution.)
27. Seizures and Searches.
"That general warrants, whereby an officer or messenger may
be commanded to search suspected places without evidence of a
fact committed, or to seize any person or persons not named, or
whose offence is not particularly described and supported by evi-
dence, are grievous and oppressive, and ought not to be granted."
(Virginia Bill of Rights of 1776.)
' ' That the people have a right to hold themselves, their houses,
papers, and possessions free from search or seizure, and therefore
warrants without oaths or affirmations first made, affording a suffi-
cient foundation for them, and whereby any officer or messenger
may be commanded or required to search suspected places, or to
199
Evolution of the Constitution
seize any person or persons, his or their property, not particularly
described, are contrary to that right, and ought not to be gjranted."
(Pennsylvania Constitution of 1776.)
" That all warrants, without oath or affirmation, to search sus-
pected places, or to seize any person or property, are grievous
and oppressive ; and all general warrants — to search suspected
places, or to apprehend suspected persons, without naming or
describing the place, or the person in special — ^are illegal, and
ought not to be granted." (Maryland Declaration of Rights of
1776.)
• • That general warrants — whereby an officer or messenger
may be commanded to search suspected places, without evidence
of the fact committed, or to seize any person or persons, not
named, whose offences are not particularly described, and sup-
ported by evidence — are dangerous to liberty, and ought not to be
granted." (North Carolina Declaration of Rights of 1776.)
The Vermont constitution of 1777 repeats the provision given
above from the Pennsylvania constitution of 1776.
" Every subject has a right to be secure from all unreasonable
searches and seizures of his person, his houses, his papers, and
all his possessions. All warrants, therefore, are contrary to this
right, if the cause or foundation of them be not previously sup-
ported by oath or affirmation, and if the order in the warrant to a
civil officer, to make search in suspected places, or to arrest one
or more suspected persons, or to seize their property, be not ac-
companied with a special designation of the persons or objects of
search, arrest, or seizure ; and no warrant ought to be issued but
in cases, and with the formalities, prescribed by the laws." (Mas-
sachusetts Constitution of 1780.)
The above provision from the Massachusetts constitution of
1780 is repeated in the New Hampshire constitution of 1784.
The Vermont constitution of 1 786 repeats the provision given
above from the Pennsylvania constitution of 1776.
" The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures
shall not be violated, and no warrants shall issue but upon prob-
able cause, supported by oath or affirmation and particularly
Evolution from the Charters
describing the place to be searched and the persons or things to
be seized." (Fourth Amendment to the Constitution.)
28. Trial by Jury.
"That no proprietor, freeholder, or inhabitant of the said prov-
ince of West New Jersey shall be deprived or condemned of life,
limb, liberty, estate, property, or any ways hurt in his or their
privileges, freedoms, or franchises, upon any account whatsoever,
without a due trial and judgment passed by twelve good and
lawful men of his neighborhood first had ; and that in all causes
to be tried and in all trials the person or persons arraigned may
except against any of the said neighborhood, without any reason
rendered (not exceeding thirty-five), and, in case of any valid rea-
son alleged, against every person nominated for that service. . . .
' ' That the trials of all causes, civil and criminal, shall be
heard and decided by the verdict or judgment of twelve honest
men of the neighborhood, only to be summoned and presented
by the sheriff of that division or propriety where the fact or tres-
pass is committed." (Concessions of West Jersey of 1677.)
"That all trials shall be by twelve men, and, as near as may
be, peers or equals, and of the neighborhood, and men without
just exception ; in cases of life, there shall be first twenty-four
returned by the sheriffs, for a grand inquest, of whom twelve, at
least, shall find the complaint to be true ; and then the twelve
men, or peers, to be likewise returned by the sheriff, shall have
the final judgment. But reasonable challenges shall be always
admitted against the said twelve men, or any of them." (Penn-
sylvania Laws Agreed upon in England, 1682.)
"That in all capital or criminal prosecutions a man hath a
right to a speedy trial by an impartial jury of twelve men of his
vicinage, without whose unanimous consent he cannot be found
guilty
"That in controversies respecting property, and in suits be-
tween man and man, the ancient trial by jury is preferable to any
other, and ought to be held sacred." (Virginia Bill of Rights of
1776.)
"That the inestimable right of trial by jury shall remain con-
201
Evolution of the Constitution
firmed as a part of the law of this colony without repeal forever. ' *
(New Jersey Constitution of 1776.)
"That in all prosecutions for criminal offences a man hath a
right to a speedy public trial by an impartial jury of the country,
without the unanimous consent of which jury he cannot be found
guilty." (Pennsylvania Constitution of 1776.)
" That in all criminal prosecutions every man hath a right to a
speedy trial by an impartial jury, without whose unanimous con-
sent he ought not to be found guilty." (Maryland Declaration
of Rights of 1776.)
"That no freeman shall be convicted of any crime, but by the
unanimous verdict of a jury of good and lawful men, in open
court, as heretofore used
"That in all controversies at law, respecting property, the
ancient mode of trial, by jury, is one of the best securities of the
rights of the people, and ought to remain sacred and inviolable.**
(North Carolina Declaration of Rights of 1776.)
" Trial by jury to remain inviolate forever." (Georgia Consti-
tution of 1777.)
" Trial by jury in all cases in which it hath heretofore been
used in the colony of New York shall be established and remain
inviolate forever." (New York Constitution of 1777.)
The Vermont constitution of 1777 repeats the provision given
above from the Pennsylvania constitution of 1776.
"And the inestimable right of trial by jury shall remain con-
firmed as part of this constitution forever." (Rejected Constitu-
tion of Massachusetts of 1778.)
"The right of trial by jury in all cases as heretofore used in
this State shall be preserved inviolate forever. " (Rejected Con-
stitution of New Hampshire of 1778.)
' ' In all controversies concerning property, and in all suits
between two or more persons, except in cases in which it has
heretofore been otherways used and practised, the parties have a
right to a trial by jury ; and this method of procedure shall be
held sacred, unless, in causes arising on the high seas, and such
as relate to mariners' wages, the legislature shall hereafter find it
necessary to alter it." (Massachusetts Constitution of 1780.)
202
Evolution from the Charters
The above provision from the Massachusetts constitution of
1780 is repeated in the New Hampshire constitution of 1784.
" In all criminal prosecutions the accused shall enjoy the right
to a speedy and public trial by an impartial jury of the State and
district wherein the crime shall have been committed, which dis-
trict shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation ; to be con-
fronted with the witnesses against him ; to have compulsory process
for obtaining witnesses in his favor, and to have the assistance of
counsel for his defence." (Sixth Amendment to the Constitu-
tion.)
"In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved,
and no fact tried by a jury shall be otherwise re-examined in any
court of the United States than according to the rules of the
common law." (Seventh Amendment to the Constitution.)
29. Prisoners to have Counsel and Witnesses.
"That all criminals shall have the same privileges of witnesses
and council as their prosecutors." (Pennsylvania Charter of
Privileges of 1701.)
"That in all capital or criminal prosecutions a man hath a
right to demand the cause and nature of his accusation, to be
confronted with the accusers and witnesses, to call for evidence
in his favor ; nor can he be compelled to give evidence against
himself." (Virginia Bill of Rights of 1776.)
" That in all prosecutions for criminal offences, a man hath a
right to be heard by himself and his council, to demand the cause
and nature of his accusation, to be confronted with the witnesses,
to call for evidence in his favor ; nor can he be compelled to give
evidence against himself. ' ' (Pennsylvania Constitution of 1 776.)
"That, in all criminal prosecutions, every man hath a right to
be informed of the accusation against him ; to have a copy of the
indictment or charge in due time (if required) to prepare for his
defence ; to be allowed counsel ; to be confronted with the wit-
nesses against him ; to have process for his witnesses ; to ex-
203
Evolution of the Constitution
amine the witnesses, for and against him, on oath.'* (Maryland
Declaration of Rights of 1776.)
" That, in all criminal prosecutions, every man has a right to
be informed of the accusation against him, and to confront the
accusers and witnesses with other testimony, and shall not be
compelled to give evidence against himself." (North Carolina
Declaration of Rights of 1776.)
" And it is further ordained. That in every trial on impeach-
ment, or indictment for crimes or misdemeanors, the party im-
peached or indicted shall be allowed counsel, as in civil actions. ' '
(New York Constitution of 1777.)
The Vermont constitution of 1777 repeats the provision given
above from the Pennsylvania constitution of 1776.
" And on every trial, as well on impeachments as others, the
party accused shall be allowed counsel." (South Carolina Con-
stitution of 1778.)
" No subject shall be held to answer for any crime or offence
until the same is fully and plainly, substantially and formally,
described to him ; or be compelled to accuse, or furnish evidence
against himself; and every subject shall have a right to produce
all proofs that may be favorable to him ; to meet the witnesses
against him face to face, and to be fully heard in his defence
by himself, or his counsel at his election." (Massachusetts Con-
stitution of 1780.)
The above provision from the Massachusetts constitution of
1780 is repeated in the New Hampshire constitution of 1784.
The Vermont constitution of 1786 repeats the provision given
above from the Pennsylvania constitution of 1776.
"Nor shall [any person] be compelled in any criminal case
to be a witness against himself." (Fifth Amendment to the
Constitution.)
" In all criminal prosecutions the accused shall enjoy the right
to be informed of the nature and cause of the accusation ; to be
confronted with the witnesses against him ; to have compulsory
process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defence." (Sixth Amendment to
the Constitution.)
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Evolution from the Charters
30. Excessive Bail and Fines and Cruel Punish-
ments.
"That all fines shall be moderate." (Pennsylvania Laws
Agreed upon in England, 1682.)
' ' That excessive bail ought not to be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted."
(Virginia Bill of Rights of 1776.)
" Excessive bail shall not be exacted for bailable offences, and
all fines shall be moderate." (Pennsylvania Constitution of 1776.)
' ' That sanguinary laws ought to be avoided, as far as is con-
sistent with the safety of the State : and no law, to inflict cruel
and unusual pains and penalties, ought to be made in any case,
or at any time hereafter. . . .
"That excessive bail ought not to be required, nor excessive
fines imposed, nor cruel or unusual punishments inflicted, by the
courts of law." (Maryland Declaration of Rights of 1776.)
"That excessive bail should not be required, nor excessive
fines imposed, nor cruel or unusual punishments inflicted."
(North Carolina Constitution of 1776.)
' ' Excessive fines shall not be levied, nor excessive bail de-
manded." (Georgia Constitution of 1777.)
The Vermont constitution of 1777 repeats the provision given
above from the Pennsylvania constitution of 1776.
' ' No magistrate or court of law shall demand excessive bail
or sureties, impose excessive fines, or inflict cruel or unusual pun-
ishments." (Massachusetts Constitution of 1780.)
The above provision from the Massachusetts constitution of
1780 is repeated in the New Hampshire constitution of 1784.
" Excessive bail shall not be required, nor excessive fines im-
posed, nor cruel and unusual punishments inflicted." (Eighth
Amendment to the Constitution.)
31. Twice in Jeopardy.
"No subject* shall be liable to be tried after an acquittal for
* The use of the word subject instead of citizen three years after the
battle of Yorktown and eight years afier the Declaration of Independence
205
Evolution of the Constitution
the same crime or offence.*' (New Hampshire Constitution of
1784.)
" Nor shall any person be subject for the same offence to be
twice put in jeopardy of life or limb." (Fifth Amendment to the
Constitution.)
32. Freedom of the Press.
"That the freedom of the press is one of the great bulwarks
of liberty, and can never be restrained but by despotic govern-
ments." (Virginia Bill of Rights of 1776.)
"That the people have a right to freedom of speech, and of
writing, and publishing their sentiments ; therefore the freedom
of the press ought not to be restrained." (Pennsylvania Consti-
tution of 1776.)
" That the liberty of the press ought to be inviolably pre-
served." (Maryland Declaration of Rights of 1776.)
" That the freedom of the press is one of the great bulwarks
of liberty, and therefore ought never to be restrained." (North
Carolina Declaration of Rights of 1776.)
" Freedom of the press to remain inviolate forever." (Georgia
Constitution of 1777.)
The Vermont constitution of 1777 repeats the provision given
above from the Pennsylvania constitution of 1776.
"That the liberty of the press be inviolably preserved."
(South Carolina Constitution of 1778.)
' ' The liberty of the press is essential to the security of freedom
in a State ; it ought not, therefore, to be restrained in this com-
monwealth." (Massachusetts Constitution of 1780.)
" The liberty of the press is essential to the security of freedom
in a State ; it ought, therefore, to be inviolably preserved." (New
Hampshire Constitution of 1784.)
The Vermont constitution of 1786 repeats substantially the
seems curious nowadays. But the word was used for a long time after
the Revolution to describe the people of a republic as well as those who
lived under a monarchy. They were all alike considered as subject to
the government and laws.
206
Evolution from the Charters
provision given above from the Pennsylvania constitution of
1776.
" The legislature of the United States shall pass no law touch-
ing or abridging the liberty of the press. ' ' (Pinckney' s Plan of
1787.)
' ' Congress shall make no law abridging the freedorn of speech
or of the press." (First Amendment to the Constitution.)
33. Right to Petition.
" That it shall be lawful for any person or persons during the
session of any general free assembly in that province to address,
remonstrate or declare any suffering, danger or grievance, or to
propose, tender or request any privilege, profit or advantage to
the said province, they not exceeding the number of one hundred
persons." (Concessions of West Jersey of 1677.)
' ' That the people have a right to assemble together, to con-
sult for their common good, to instruct their representatives, and
to apply to the legislature for redress of grievances, by address,
petition, or remonstrance." (Pennsylvania Constitution of 1776.)
"That every man hath a right to petition the Legislature, for
the redress of grievances, in a peaceable and orderly manner."
(Maryland Declaration of Rights of 1776.)
' ' That the people have a right to assemble together, to consult
for their common good, to instruct their Representatives, and to
apply to the Legislature, for redress of grievances." (North
Carolina Declaration of Rights of 1776.)
The Vermont constitution of 1777 repeats the provision given
above from the Pennsylvania constitution of 1776.
" The people have*a right, in an orderly and peaceable man-
ner, to assemble to consult upon the common good ; give instruc-
tions to their representatives, and to request of the legislative
body, by the way of addresses, petitions, or remonstrances, re-
dress of the wrongs done them, and of the grievances they suffer."
(Massachusetts Constitution of 1780.)
The above provision from the Massachusetts constitution of
1780 is repeated in the New Hampshire constitution of 1784.
207
Evolution of the Constitution
The Vermont constitution of 1 786 repeats the provision given
above from the Pennsylvania constitution of 1776,
" Congress shall make no law abridging the right of the people
peaceably to assemble, and to petition the government for a
redress of grievances. " (First Amendment to the Constitution,)
34. Right to Bear Arms.
"That the people have a right to bear arms for the defence
of themselves and the State." (Pennsylvania Constitution of
1776.)
• ' That the people have a right to bear arms for the defence
of the State." (North Carolina Declaration of Rights of 1776.)
The Vermont constitution of 1777 repeats the provision given
above from the Pennsylvania constitution of 1776.
" The people have a right to keep and bear arms for the com-
mon defence." (Massachusetts Constitution of 1780.)
The Vermont constitution of 1 786 repeats the provision given
above from the Pennsylvania constitution of 1776.
' ' 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." (Second Amendment to the Constitution.)
35. Militia Necessary; Military Subordinate.
" That a well-regulated militia, composed of the body of the
people, trained to arms, is the proper, natural, and safe defence
of a free state ; that standing armies, in time of peace, should be
avoided, as dangerous to liberty ; and that in all cases the mili-
tary should be under strict subordination to, and governed by,
the civil power." (Virginia Bill of Rights of 1776.)
' ' As standing armies in the time of peace are dangerous to
liberty, they ought not to be kept up ; And that the military
should be kept under strict subordination to, and governed by,
the civil power." (Pennsylvania Constitution of 1776.)
" That a well-regulated militia is the proper and natural de-
fence of a free government.
"That standing armies are dangerous to liberty, and ought
not to be raised or kept up, without consent of the Legislature.
208
Evolution from the Charters
"That in all cases, and at all times, the military ought to be
under strict subordination to and control of the civil power."
(Maryland Declaration of Rights of 1776.)
" As standing armies in time of peace are dangerous to lib-
erty, they ought not to be kept up ; and that the military should
be kept under strict subordination to, and governed by, the civil
power." (North Carolina Declaration of Rights of 1776.)
The Vermont constitution of 1777 repeats the provision given
above from the Pennsylvania constitution of 1776.
" That the military be subordinate to the civil power of the
State." (South Carolina Constitution of 1778.)
"And as in time of peace armies are dangerous to liberty,
they ought not to be maintained without the consent of the legis-
lature ; and the military power shall always be held in an exact
subordination to the civil authority and be governed by it."
(Massachusetts Constitution of 1780.)
' ' A well-regulated militia is the proper, natural, and sure de-
fence of a state.
"Standing armies are dangerous to liberty, and ought not to
be raised or kept up without the consent of the legfislature.
" In all cases, and at all times, the military ought to be under
strict subordination to, and governed by, the civil power." (New
Hampshire Constitution of 1784.)
The Vermont constitution of 1786 repeats the provision gfiven
above from the Pennsylvania constitution of 1 776.
"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." (Second Amendment to the Constitution.)
36. Quartering Soldiers in Time of Peace.
"That 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." (Mary-
land Declaration of Rights of 1776.)
" In time of peace, no soldier ought to be quartered in any
house without the consent of the owner ; and in time of war, such
quarters ought not to be made but by the civil magistrate, in a
14 209
Evolution of the Constitution
manner ordained by the legislature. ' ' (Massachusetts Constitu-
tion of 1780,)
The above provision from the Massachusetts constitution of
1780 is substantially repeated in the New Hampshire constitution
of 1784.
" 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." (Third Amendment to the
Constitution.)
37. Attainder of Treason.
"That no law, to attaint particular persons of treason or
felony, ought to be made in any case, or at any time hereafter."
(Maryland Declaration of Rights of 1776.)
" And that no acts of attainder shall be passed by the legisla-
ture of this State for crimes, other than those committed before
the termination of the present war ; and that such acts shall not
work a corruption of blood." (New York Constitution of 1776.)
"No bill of attainder shall be passed [by Congress].
' ' No State shall pass any bill of attainder. ' * (The Constitu-
tion.)
38. Ex Post Facto Laws.
"That retrospective laws, punishing facts committed before
the existence of such laws, and by them only declared criminal,
are oppressive, unjust, and incompatible with liberty ; wherefore
no ex post facto law ought to be made." (Maryland Declaration
of Rights of 1776.)
" That retrospective laws, punishing facts committed before
the existence of such laws, and by them only declared criminal,
are oppressive, unjust, and incompatible with liberty ; wherefore
no ex post facto law ought to be made. ' ' (North Carolina Declara-
tion of Rights of 1776.)
"Laws made to punish for actions done before the existence
of such laws, and which have not been declared crimes by pre-
ceding laws, are unjust, oppressive, and inconsistent with the
fundamental principles of a free government." (Massachusetts
Constitution of 1780.)
Evolution from the Charters
" Retrospective laws are highly injurious, oppressive, and un-
just. No such laws, therefore, should be made, either for the
decision of civil causes or the punishment of offences." (New
Hampshire Constitution of 1784.)
• ' No ex post facto law shall be passed [by Congress] .
" No state shall pass any ex post facto law." (The Constitu-
tion.)
39. Titles of Nobility, Offices of Profit, and
Presents.
"That no title of nobiHty or hereditary honors ought to be
granted in this State, nor ought any person, in public trust, to
receive any present from any foreign prince or state, or from the
United States, or any of them, without the approbation of this
State." (Maryland Declaration of Rights of 1776.)
"That no hereditary emoluments, privileges, or honors ought
to be granted or conferred in this State." (North Carolina
Declaration of Rights of 1776.)
• ' Nor shall any person holding any office of profit or trust
under the United States accept of any present, emolument, office,
or title of any kind whatever from any king, prince, or foreign
state ; nor shall the United States in Congress assembled grant
any title of nobility." (Articles of Confederation of 1778.)
"Nor shall any person, holding any office under the United
States, accept of any present, emolument, office, or title from any
king or foreign state, without being thereby absolutely rendered
forever incapable of any public trust under the United States."
(Drayton's Articles of Confederation of 1778.)
"The United States shall not grant any title of nobility."
(Pinckney's Plan, 1787,)
• ' No title of nobility shall be granted by the United States,
and no person holding any office of profit or trust under them
shall, without the consent of the congress, accept of any present,
emolument, office, or title of any kind whatever from any king,
prince, or foreign state.
" No state shall grant any title of nobility." (The Constitu-
tion.)
211
Evolution of the Constitution
40. Martial Law and Habeas Corpus.
The exercise of martial law and the suspension of the
privilege of the writ of habeas corpus are somewhat alike,
because both interrupt the process of civil government
and destroy for a time the liberty of the citizen.
Martial law is the right which a military commander
assumes to suspend civil rights and the remedies founded
on them when he thinks himself justified by the neces-
sities of the situation. If he makes a mistake in judg-
ment, and it is afterwards decided that the necessities
of the time did not justify him, his acts are all unwar-
ranted and void. This has been the law from time
immemorial. But the framers of the colonial charters
seem to have thought that the power to exercise martial
law should be expressly given in their documents, prob-
ably for the reason that its use might often be very
necessary in a wild country, and no question should be
allowed to arise as to the right
They usually confined its use to cases of actual war,
invasion, or rebellion. The constitutions of 1776, how-
ever, omitted any mention of it, except the Massachusetts
constitution of 1780 and the New Hampshire constitu-
tion of 1784. In fact, it is not usually found in modem
constitutions at all, because there is no need of it It
is in any event a mere question of necessity in the des-
perate straits of an invasion or a rebellion, and the time
and the occasion are the only tests by which the right to
use it can be decided. The conditions which may have
justified such a right as a part of the colonial charters
have long since disappeared.
But the Massachusetts constitution of 1780 and the
Evolution from the Charters
New Hampshire constitution of 1784, which mentioned
it for the last time, introduced a new power, — namely,
the right to suspend the privilege of the writ of habeas
corpus ; and it was confined, as martial law had been
confined, to the most urgent occasions.
We find a similar clause in the National Constitution,
with the suspension limited to " cases of rebellion or
invasion," when "the public safety may require it"
But, unfortunately, the framers of the Constitution failed
to say which department of the government should have
the power to suspend ; and it became a serious question
in the civil war whether the President or Congress had
the power. In the Massachusetts constitution of 1780
it had been given, expressly to the legislature.
The governor allowed to exercise martial law in rebellion or
mutiny. (Virginia Charter of 1609.)
Lord Baltimore allowed to exercise martial law in rebellion or
mutiny. (Maryland Charter of 1632.)
The above provision from the Maryland charter of 1632 is
substantially repeated in the Grant of Maine of 1639.
The governor allowed to exercise martial law only as occasion
shall require. (Connecticut Charter of 1662.)
The governor allowed to exercise martial law only as occasion
shall require. (Rhode Island Charter of 1663.)
The Carolina charters of 1663 and 166$ copy the provision
given above from the Maryland charter of 1632.
The governor allowed to exercise martial law in time of actual
war or rebellion as occasion shall necessarily require, but cannot
grant commissions for exercising it except by consent of his coun-
cil. (Massachusetts Charter of 1 69 1.)
The corporation allowed to exercise martial law in time of
actual war or rebellion where by law it may be used. (Georgia
Charter of 1732.)
The governor to exercise martial law over the army and navy
213
Evolution of the Constitution
in war and invasion, and in rebellion declared by the legislature
to exist, as occasion shall necessarily require ; and the privilege
of habeas corpus not to be suspended by the legislature except
upon the most urgent occasions, and then for a time not exceed-
ing twelve months. (Massachusetts Constitution of 1780.)
The above provisions from the Massachusetts constitution of
1 780, relating to both martial law and habeas corpus, are repeated
in the New Hampshire constitution of 1784, except that the time
during which the writ of habeas corpus may be suspended is
limited to three months.
The privilege of habeas corpus to be suspended only in rebel-
lion or invasion. (Pinckney's Plan, 1787.)
The privilege of habeas corpus to be suspended only in rebel-
lion or invasion, when the public safety may require it. (The
Constitution.)
41. Eminent Domain.
" That private property ought to be subservient to public uses,
when necessity requires it ; nevertheless, whenever any particular
man's property is taken for the use of the public, the owner ought
to receive an equivalent in money." (Vermont Constitution of
" And whenever the public exigencies require that the prop-
erty of an individual should be appropriated to public uses, he
shall receive a reasonable compensation therefor," (Massachu-
setts Constitution of 1780.)
' ' That private property ought to be subservient to public uses,
when necessity requires it ; nevertheless, whenever any particular
man's property is taken for the use of the public, the owner ought
to receive an equivalent in money." (Vermont Constitution of
1786.)
"Nor shall private property be taken for public use without
just compensation." (Fifth Amendment to the Constitution.)
214
CHAPTER VI.
THE EVOLUTION OF FEDERALISM.
(1643 to 1787.)
When we examine our present National Constitution,
it is easy to see that it consists of two classes of pro-
visions. One class is concerned with the forms and
departments of administration, — the house of representa-
tives, the senate, the president, the judiciary, and their
relations to one another ; and these provisions, as we
have shown, were gradually evolved by two hundred
years' experience with the local governments under the
colonial charters and constitutions and under the consti-
tutions of 1776.
The other class of provisions is concerned with the
relations of the states to the general government, and
limits the powers of the general government and restricts
also the powers of the states. This federalism, as it is
called, we have not yet touched upon, because there
was nothing relating to it in the colonial charters or in
the constitutions of 1776. It belongs to another line
of development
There were thus two lines of development One
started in the forms of the old charters for governing
each individual colony, and grew through subsequent
charters, constitutions, and the constitutions of 1776,
producing, as we have shown, the administrative pro-
215
Evolution of the Constitution
visions of the National Constitution. The other line
started in plans of union for defence against the Indians,
and passed through a totally different set of documents,
until it produced the Articles of Confederation and the
federalism of the Constitution.
The development of federalism went through similar
stages, and took almost as long in its processes as the
development of the administrative parts of the Constitu-
tion. We usually think of it as starting about the time
of the Revolution, or at least receiving its greatest impetus
at that time. But it had been an important and a much-
debated question for more than a hundred years before
1776, and more than twenty plans of union had been
suggested and discussed. In fact, during the seven-
teenth and eighteenth centuries the union or confedera-
tion of the colonies was one of the great questions of
the English-speaking world.*
If it had not been a great problem, and if it had not
been so long and so much discussed, there would be no
American federalism to-day. Such a remarkable and suc-
cessful contrivance could not have been made in a year
or in a decade ; could not have been the result of one
war or revolution. Neither imitation of other countries
nor sudden inspiration or ingenuity accounts for great
political institutions ; but natural conditions, many
minds, many ages, and great searchings of heart
The material which shows the attention given to this
question in colonial times and the experiments that were
* It is interesting to note that England is again discussing the
confederation of her colonies.
216
Evolution of Federalism
made in it has been collected in an admirable manner
by Mr. Frederick D. Stone, librarian of the Historical
Society of Pennsylvania, and published as an appendix
to the second volume of Carson's " One Hundredth
Anniversary of the Constitution." But it is hardly as
yet much known to constitutional lawyers and scholars,
and certainly not so well known as it deserves.
Before we go farther in the analysis of this material
it may be well to say that the progression of the subject
is union, confederation, federalism. By union is meant
a mere alliance of sovereignties to accomplish a certain
purpose. This purpose accomplished, the union may
cease, or may be continued, at the option of the con-
tracting parties, to accomplish some other purpose.
Confederation implies a stronger bond. The union is
intended to be perpetual, — at any rate, it is avowedly
to be perpetual, — and the sovereignties surrender some
of their local rights to the union and create a general
council or some form of general power to conduct what
is for the general interest. But it is a consolidation of
sovereignties, and not a government of the people. The
general government deals with the individual states, and
not directly with the people.
Federalism goes farther. More power is. surrendered
to the general government, which, instead of being the
creature of the sovereignties, is the creature of the mass
of the people that compose the sovereignties. The
general government, instead of acting through the indi-
vidual states, asking them for everything and relying on
them to enforce its commands, now acts directly on the
people and has the power to enforce its commands upon
217
Evolution of the Constitution
the people. The states retain their local rights and are
supposed to be indestructible entities, and the union
and the general government are supposed to be inde-
structible. By this is meant that the fusion has gone
so far that, although the original elements can still be
appreciated as distinct bodies, they could not be sepa-
rated or resolved into their original independence with-
out great violence, — that is, war and revolution.
What may be the development beyond federalism
remains to be seen. But it presumably will be a more
and more complete fusion, approaching homogeneity,
and a stronger nationality, until it will be utterly im-
possible, by violence or any other known means, to
restore the original elements.
The numerous plans of union in colonial times show
the early phases of this development, and the first one
of which we have any record is the confederation of the
New England colonies in 1643 to protect themselves
from the Indians or any hostile invasion.
The articles of this union are very particular to state
that each colony retains its own local rights and juris-
diction unimpaired. The costs of any war are to be
divided among the colonies in proportion to the popu-
lation of each ; but they are to be " left to their owne
just course and custome of rating themselves." Thus
the independence of each party to the union is amply
secured, and the only step towards federalism is that
the provinces surrender a small amount of their indi-
vidual rights by agreeing not to make war without per-
mission of the union unless suddenly invaded, and by
agreeing that no two of them shall join in one juris-
218
Evolution of Federalism
diction without the consent of the others. But the local
rights of each province are so strongly guaranteed that
the union is still very far from federalism. This was
natural ; for the first and most essential element in feder-
alism is a rigorous and distinct appreciation of local sov-
ereignty. This is the foundation ; for, as federalism is
an indestructible union of indestructible states, the states
must begin by feeling themselves indestructible.
Besides the emphasis it gives to local rights, the New
England union of 1643 shows the beginnings of certain
general provisions which can be traced afterwards until
they appear in the National Constitution of 1787. This
union of 1643 was quite early in the colonial period.
The first of the colonies, Virginia, had been founded
only a little more than thirty years, and Massachusetts
was not yet twenty years old. But the situation of the
colonies had already made the importance of their union
very obvious. People naturally talked about it, and for
the next hundred years and more we find most of the
prominent people preparing plans.
Besides its very evident advantage for defence and
war, a union might obviate certain inconveniences which
were felt then as strongly as they would be now if we
had no union. The colonists were of the same nation,
spoke the same language, were living in the same zone
of climate, soil, and products ; and yet they were sepa-
rated into distinct communities, governed by different
laws, often with very strong religious differences, and
with no boundaries between their jurisdictions but arti-
ficial lines, or natural ones which were very easily passed.
One of the first questions that arose among them was,
319
Evolution of the Constitution
How is a citizen of one colony to be treated when he
goes to visit or trade in a neighboring colony, where the
people do not like his opinions or where the laws of
trade differ from those of his home? Shall there be
certificates or passports? Suppose one colony treats
the Indians in one manner, and another colony in an-
other manner, and a third colony in a third manner,
will not there be endless misunderstandings and wars,
and will it not be impossible to stop the wars ? Sup-
pose a servant escapes from his master and takes refuge
in another colony, can the master get him back ? Will
not persons accused of crime in one colony simply re-
move into another ?
All these questions were very real and practical in
colonial times, and in some respects more so than we
might at first suppose. It was no light matter for a
Massachusetts man in the year 1650 to go down into
Rhode Island ; and it was a very serious matter for a
Rhode Island person to go up into Massachusetts. A
Quaker woman who went from Rhode Island to Massa-
chusetts was hanged for her temerity, and several Bap-
tists were severely handled. In Pennsylvania, in Gov-
ernor Keith's time, the people were aroused to great
indignation because a Delaware sheriff had pursued a
hue-and-cry after a thief across the boundary ; and the
matter had to be accommodated by allowing each pro-
vince to pursue hue-and-cry for a certain distance across
the line.
The differences between the people of the colonies
were very marked ; and even as late as the time of the
Revolution the delegates to the Continental Congress
Evolution of Federalism
are said to have looked upon one another at first as
strangers and aliens. In the year 1643 i* would have
been almost impossible to join all the colonies in a
union. In New England, Rhode Island was so much
disliked by the other provinces that it was not included
in the union we are now considering.
Massachusetts, New Plymouth, Connecticut, and New
Haven were, however, sufficiently agreed among them-
selves, and in the union they formed each was to ap-
point two commissioners, and the eight thus chosen
were to be the governing body of the union. If Dutch
ideas were as prevalent in New England as Mr. Camp-
bell supposes, these commissioners would have voted
by colonies, after the manner of the States-General of
the Netherlands. But there was no such arrangement
Six of the commissioners could decide all questions ;
and if six could not agree, the question was to be passed
upon by each of the assemblies of the four colonies,
and, if they all agreed, the decision was to be carried out.
It was a simple, ordinary arrangement for a union, and
was very much like other leagues of nations the world
over. It described itself as a "league of friendship and
amytie, offence and defence."
The problems of return of servants and fugitives from
justice and intercourse between citizens of the different
colonies were attempted to be solved in very much the
same way as they are now solved in the National Con-
stitution. Runaway servants and fugitives from justice
were to be returned, and arrangements were to be made
to give the citizens of each colony equal rights in the
other colonies.
aai
Evolution of the Constitution
But the colonists were not the only persons who saw
and discussed the convenience of union. The Crown
and the Privy Council saw it, although from a somewhat
different point of view. Charles II., immediately after
his restoration in 1660, created a council for foreign
plantations, which was to correspond with the governors
and devise means for bringing the colonies into a more
uniform government
Between twenty-five and thirty years later James II.
attempted to go much further, — to vacate all the colonial
charters and unite all the colonies from the Delaware to
the St Lawrence under one government composed of a
legislative council appointed by the king and a captain-
general as governor. He had gone so far as to appoint
Sir Edmund Andros to be the captain-general, when he
was dethroned by William III., who took no interest
in his plan of union.
The council for foreign plantations which Charles II.
had established was abolished in 1674, and ever after that
the affairs of the colonies were in the hands of the Privy
Council, who managed them through a committee known
as The Lords of Trade and Plantations. This committee
and the Privy Council governed the colonies. They
informed themselves on all colonial affairs and recom-
mended measures to the king. They did not properly
constitute a union of the colonies, but they often pro-
posed plans of union, usually from the point of view of
military convenience to resist the French and obtain sup-
plies and tribute from the colonies more easily. Their
plans were seldom in the direction of liberty, and are not
so interesting as those of the colonists themselves.
Evolution of Federalism
After the New England union of 1643 similar attempts
appear in the next sixty years among other colonies to
join in unions of some form or other, usually for treaties
or war with the Indians. Some of them were more or
less successful in accomplishing their object, but they
furnish us with no elaborate provisions like those of the
New England union. They were, in fact, temporary
unions, and even the New England union, though in-
tended to be perpetual, became obsolete within twenty-
five years, and had accomplished little or nothing.
An attempt at union after the niassacre at Schenectady
in 1690 is noteworthy as including the New England
colonies. New York, Virginia, and Maryland, — the near-
est approach to a union of all the colonies that had as
yet been tried, — but only delegates from Massachusetts,
Plymouth, Connecticut, and New York attended. Al-
though nothing remarkable was accomplished by any
of these ventures, there is evidence of considerable dis-
cussion of the subject and desire and demand for union
from all quarters, — from the colonists as well as from
the Privy Council in England.
In 1696-97 we have a definite plan drawn up in
writing by William Penn and submitted to the Lords of
Trade and Plantations. It was brought about by one of
those natural conditions and inconveniences which, as
we have shown, were steadily driving the people towards
union and federalism. Penn at that time was not only
proprietor of Pennsylvania, but also one of the proprie-
tors of East Jersey. Finding that New York was col-
lecting customs on goods sent to the Jerseys, and that
there was much difficulty in determining the quota of
223
Evolution of the Constitution
troops from East Jersey for the defence of New York, he
proposed that such matters should be settled by a union
or general government of some sort In other words,
he was striving for the settlement of two questions which
are now settled by the National Constitution.
This plan of Penn's is the first which included all the
colonies. The others had been sectional, although show-
ing a tendency to increzise the number of the sections.
Penn started with the same arrangement that had been
adopted in the New England union of 1643, and pro-
vided for two deputies to be appointed by each colony.
The twenty deputies thus appointed were to be called
the congress, which is apparently the first use of that
word for an American assembly ; and it is rather remark-
able that this congress of Penn's should be not only the
first suggestion of a representative legislature for all the
colonies, but should have the same name that was after-
wards given in the Revolution and that is still retained.
The New England union had been merely a legis-
lative body without any executive head. But Penn's
congress was to be presided over by a commissioner
appointed by the king, and, as New York would be the
most central place for the congress to meet in, the New
York governor should " be the king's high commis-
sioner during the session, after the manner of Scotland."
This passage is worth observing for the phrase " after
the manner of Scotland," because so much has been
recently written about the Dutch origin of our institu-
tions, and it has been particularly urged by Mr. Camp-
bell that Penn's having had a Dutch mother and having
travelled extensively in Holland gave a tinge of Dutch
224
Evolution of Federalism
ideas to the laws and constitutions which he established
in America. But here we find him confessing that he
is guided in one particular by a Scotch model, and it is
not an unfair inference that if he admits an imitation in
this instance he would probably admit it in others. In
none of his laws or constitutions, however, can a single
word be found implying a Dutch origin.
After providing for an executive, Penn's plan goes on
to deal with those inconveniences of intercourse between
the colonies which we found the New England union
attempting to mitigate. The New England union was
to preserve peace among the different colonies, carry
on war against the Indians, arrange the quotas of men
each colony was to furnish for war, arrange for the
rights of citizens of one colony visiting another colony,
adopt a general policy of dealing with the Indians, and
provide for the return of servants and persons accused
of crime escaping into another colony. Penn added to
these subjects of general government the return of ab-
sconding debtors and the regulation of commerce.
The regulation of commerce is a most interesting ad-
dition and development As commerce increased in the
course of years its regulation became of more and more
importance, and in the end the necessity for this regu-
lation was one of the most important causes of federal-
ism. In fact, the convention which framed the National
Constitution in 1787 was originally called merely for the
purpose of regulating the commerce between the States
that bordered on Chesapeake Bay ; and no more im-
portant clause was placed in the national document than
that which gives Congress power to " regulate commerce
15 «S
Evolution of the Constitution
with foreign nations and among the several states, and
with the Indian tribes."
The last clause of Penn's plan provided that in time
of war the king's high commissioner should be " General
or Chief Commander" of the forces raised by the colo-
nies. This sort of military power was, as we have seen
in a previous chapter, often given to the governor in
the constitutions of 1 776, and he was called commander-
in-chief or captain-general until, in the National Consti-
tution, the term commander-in-chief was settled upon
for the President
Penn's plan of a congress of deputies, each colony
sending an equal number, with a presiding officer, or
executive head, appointed by the king, remained for a
long time the model for all plans of union of the colo-
nies. Names and details were varied, but the general
outline remained.
It may cdso be observed at this point that the legis-
lative body created by the New England plan of union
had the sole power of declaring war and peace, and the
other numerous temporary unions which were made
from time to time were usually for the purpose of regu-
lating war or treaties with the Indians. This may have
gradually accustomed the colonists to the idea that the
war and peace power of a government belonged to the
representative and legislative department, and not to
the executive, so that, when the National Constitution
was framed, the war power, instead of being given to the
President in imitation of the war power of the British
king, was given to Congress.
For some years after Penn's plan appeared there was
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Evolution of Federalism
a discussion of the subject of union, which shows that
the idea was not only developing, but was arousing op-
position in some quarters, or, in other words, that the
people were becoming more and more trained to its
various aspects. About the time of Penn's plan the
Lords of Trade discussed another one, which they had
received from the governor and assembly of Massa-
chusetts, accompanied by several memorials from. per-
sons in neighboring colonies. It was suggested, appar-
ently, that New York, New Jersey, and all the New
England colonies be united together under one gover-
nor, who should be the person that was appointed gov-
ernor of Massachusetts, and that he should also be the
governor of New York and New Hampshire and general
of the forces raised by the colonies that were to unite.
Connecticut objected to this arrangement, because
such a military governor would have power to march
her people beyond the boundaries of their province
without that province's consent This objection was a
very common one in colonial times, and the feeling was
strong that the people of a province should never, ex-
cept by their own consent, be marched beyond its
boundaries. New Hampshire also objected, because it
would be an increased charge upon her without any
compensating advantage ; and New York objected, be-
cause most of the New England colonies had enough
to do to defend their own frontiers and could not assist
Massachusetts or New York. There seems also to have
been an apprehension that the plan might give Boston
too much advantage in trade.
The question was debated back and forth with con-
227
Evolution of the Constitution
siderable detail, and the Lords of Trade, being of the
opinion that any union, except under such a military
head, was impracticable, recommended that a captain-
general be appointed as requested, and that his chief
residence during the war be in New York, with liberty
to remove to Boston from time to time as occasion
should require. Richard, Earl of Bellomont, was ap-
pointed to this office, and for a time this union was in
actual operation.
Two years afterwards Charles D'Avenant suggested
a scheme of a Council of Trade, to which council each
colony should regularly report its condition, and at the
same time he approved of Penn's plan. Both his plan
and Penn's were criticised in a pamphlet written by a
Virginian, who objected to the provisions for equal rep-
resentation from each colony. As the colonies differed
vastly in numbers and extent, this was, he said, unfair,
and he proposed that Virginia should have four repre-
sentatives, Maryland three, New York two, Boston three,
and so on. No one, he said, would deny Virginia's right
to more representatives than the others, because she was
the eldest and the most profitable of all the English
plantations in America.
He also objected to the deputies meeting always at
New York, and offered an arrangement by which they
should meet in turn in different parts of the country, so
that they might become better acquainted with the con-
ditions and requirements of each part New York, he
said, should not have an opportunity of drawing so
much money to it every year from all the other colo-
nies. He commented somewhat on what D'Avenant
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Evolution of Federalism
had said of Penn's plan being an imitation of the Greek
Amphictyonic Council. He urged that the colonies
which still remained proprietary or had charters be
taken under the direct rule of the king by act of Par-
liament This uniformity in the government of each
would assist in a uniform plan for the government of
all, which, he said, was becoming more and more neces-
sary to resist the designs of the French and Spanish
on the North American continent
In 1 70 1 Robert Livingston, of New York, suggested
a plan which is of interest, because it is based on the
sectional principle and gives up any hope of uniting all
the colonies. He proposed three distin-ct governments,
—one composed of Virginia, Maryland, and North and
South Carolina ; a second, of part of Connecticut, New
York, the Jerseys, Pennsylvania, and Delaware ; and a
third, of Massachusetts, New Hampshire, Rhode Island,
and the rest of Connecticut He divided up the colo-
nies, it will be observed, very nearly on the division,
which has always existed, of New England, Middle, and
Southern ; and his plan shows clearly that sectionalism
was always an important element in the growth or in
checking the growth of federalism.
In 1 72 1 the Earl of Stair prepared a very compre-
hensive scheme of twenty-six articles, which were to in-
clude the West Indies as well as all the English colonies
on the continent It followed the regulation form,
which had been started by Penn, of a legislative body
composed of two delegates from each province, presided
over by a captain-general, who was to reside in the
middlemost province. The right to local self-govem-
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Evolution of the Constitution
ment in each colony was guaranteed, as it usually was
in these plans, showing how persistent was this first and
essential element of federalism. The method of invest-
ing the captain-general with his authority was left to be
settled afterwards, and the plan suggested that he might
be either nominated, elected, chosen, or appointed,
which gave the colonists a possible chance for a voice
in his selection, and was more liberal than most of the
plans.
The plan was indeed not only liberal, but elaborate,
and showed a decided tendency to develop the details
of a general government. Salaries were provided for
every one, a treasury department was outlined, and a
general post-office system. There were also to be a
secretary of state and a small navy of eight or ten ves-
sels. It was a decided development towards a national
government
The Lords of Trade seem to have recommended the
general features of the plan to the king, and they added
that the utility of a union was so evident that it was un-
necessary to argue the question. This seems to have
been the general feeling of the time. The absurdities
and inconveniences of intercourse among the colonies
were obvious to every one.
In 1722, a plan by Daniel Coxe, of New Jersey, sug-
gests, for the first time, that the captain-general, or head
of the union, should be given the veto power, and argues
for the importance of a union from the disasters which
befell the ancient Britons for the want of one.
At the same time there was one important person,
and probably others, long-headed enough to see that
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Evolution of Federalism
from the point of view of the British Crown there might
be a disadvantage in union. Sir William Keith, who
had been a very successful governor of Pennsylvania,
thought that the want of harmony among the colonies
and their jealousies in trade should be encouraged
rather than mitigated. "The wisdom," he said, "of
the Crown of Great Britain therefore by keeping its colo-
nies in such situation is very much to be applauded ;
for while they continue so it is morally impossible that
any dangerous union can be formed among them." It
was not good policy, he thought, " to accustom all the
able men in the colonies to be well exercised in arms."
Our next plan is Frankhn's of 1754, and a very im-
portant one. The Lords of Trade were anxious that all
the colonies should, by their representatives, meet all
the Indian tribes at Albany and make a general treaty
with them which would break up the confusion of sepa-
rate treaties and policies and be a precedent for general
action in the future. Massachusetts took up the sug-
gestion with much earnestness, and urged that at the
same meeting there should be an attempt to confederate
all the provinces. Several plans of union were offered,
and Franklin's was adopted. It had been more ma-
turely considered than the others ; for before the meet-
ing he had published his thoughts on the question in his
newspaper in Philadelphia, and from these he elaborated
the plan he presented to the meeting.
It contained most of the developments we have al-
ready noticed ; self-government was guaranteed to each
colony, salaries were provided, and a treasury depart-
ment ; and then we find some interesting advances.
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Evolution of the Constitution
The president-general is distinctly assigned the duty of
carrying into execution the acts of the council, — a de-
tail of executive power which had not been formally
expressed in the other plans, and which reminds us of
that expression which, starting in one of the constitu-
tions of Pennsylvania, passed through nearly all the
documents until we find it in the National Constitution
in the slightly altered form, " he shall take care that the
laws be faithfully executed."
The president-general is to appoint military officers
with the consent of the grand council, and civil officers
are to be appointed by the grand council with the con-
sent of the president-general, which was a more detailed
description of the appointing power than had appeared
before. The term president-general is worth observing.
It is evidently an attempt to give a name which should
be short and also express the general opinion that the
head of the union must be at the same time both a civil
and a military officer. The same idea was afterwards
carried out in the National Constitution by calling the
head of the government President and declaring that he
should be commander-in-chief of the army and navy.
But the most striking advance in Franklin's plan is
that the grand council, or representative body of all the
colonies, is given the power " to lay and levy general
duties, imposts, or taxes" on each colony according to
its circumstances and ability. Previous plans had been
very careful to leave to each colony the manner in which
money was to be raised from it, and this was part of the
guarantee of its local rights. The union might fix a
colony's quota, but the colony was to lay the taxes that
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Evolution of Federalism
raised it, and this showed that the plans of union were
as yet nothing but leagues or alliances of sovereignties.
But here in Franklin's plan we find the provinces for the
first time surrendering an important part of their sover-
eignty and allowing the general government to act di-
rectly on their people instead of through sovereignties,
and this was evidently a strong move in the direction of
federalism.
There was also another new provision in the plan,
providing that no money should issue except " by joint
orders of the president-general and grand council, ex-
cept where sums had been appropriated to particular
purposes and the president-general is previously em-
powered by an act to draw for such sums." This was a
natural and necessary arrangement appearing for the
first time, and afterwards in the National Constitution
the same point was covered by the simple expression,
" No money shall be drawn from the treasury but in
consequence of appropriations made by law."
In the next Sentence of his plan we find Franklin
providing that " the general accounts shall be yearly
settled and reported to the several assemblies," and in
the National Constitution we find, " a regular statement
and account of the receipts and the expenditures of all
public money shall be published from time to time."
The general outline of Franklin's plan was, of course,
the regulation one of a body of deputies sent by the
colonies and called the grand council, and a president-
general appointed by the Crown, who was not merely
to preside over the grand council, but is described as
administering the general government The grand
233
Evolution of the Constitution
council were to choose their own speaker, and could
not be dissolved nor continued sitting longer than six
weeks at one time without their own consent or the
special command of the Crown. The president-general
is impliedly given the veto power in a passage which
requires his assent to all acts of the grand council, and
there is another veto power in the king, for the laws must
be transmitted to him, and, if not disapproved within
three years after presentation, are to remain in force.
It was, in fact, a complete form of government It is
important also to notice that the representation of the
colonies in the grand council was not equal. Massa-
chusetts was given seven representatives, Virginia seven,
Pennsylvania six, and the others lesser numbers. After
three years the representation from each colony was to
be in proportion to the money raised from it each year,
provided that the number chosen by any one province
should not be more than seven nor less than two. This
question of the representation of each colony in the union
gave much trouble, and was settled in different ways. In
the previous plans we find an equal representation, with
occasional criticisms that it should be unequal, but here
we find a plan adopted by representatives of all the
colonies making the representation decidedly unequal.
This shows conclusively that the colonies were working
out the problem of representation in their own way, and
that when in the Articles of Confederation of the Revo-
lution the representation was made equal, by giving
each State one vote, it was not, as Mr, Campbell sup-
poses, an imitation of the States-General of the Nether-
lands.
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Evolution of Federalism
Among the plans which seem to have been submitted
at the same time as Franklin's was one which should be
mentioned because it is based on sectionalism. It is
supposed to have been prepared by Richard Peters, who
was secretary of the province of Pennsylvania and a
delegate to the Albany convention. It divides the
colonies into four different governments, — one composed
of the extreme southern colonies, Georgia and the two
Carolinas ; another of Virginia, Maryland, and Pennsyl-
vania ; a third of the Jerseys and New York, and the
fourth of the New England colonies. It was almost
exclusively a military suggestion, and contains nothing
worthy of comment.
Franklin's plan adopted at Albany was referred by
the Massachusetts assembly to a committee that prepared
a substitute based on sectionalism. But both this and
Franklin's plan were rejected by the Massachusetts as-
sembly and a new committee appointed, which prepared
a plan usually known as Hutchinson's. It was for the
most part a mere paraphrase of Franklin's, except that
it provides that no member of the council shall be chosen
or appointed to any civil or military office, which shows
that the desire to keep the departments of government
more distinct was growing, and it also gave the president
and council power to appoint officers for collecting from
the people the duties levied by the council. This last
provision was another advance towards federalism.
Considerable jealousy was felt against the power given
to the general government in Franklin's union, and
Hutchinson's plan provided that the power of the union
should continue for only six years, unless at the end of
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Evolution of the Constitution
that time there should be war between Great Britain
and France, in which case the power should continue
until the end of the war.
The other colonies also rejected Franklin's plan. They
seemed to be jealous of it, and thought it created too
strong a government. It was also rejected in England
by the Lords of Trade, because it was too democratic.
The Lords of Trade then offered a plan of their own,
which was merely military and never carried into effect.
Some years afterwards, Dr. Samuel Johnson, president
of King's College, in New York, proposed a plan which
is noteworthy as coming from a learned source and also
from a person who was evidently a high Tory. To his
mind the colonies seemed to be becoming too republi-
can. They should be brought more into conformity
with the government of the mother-country, and to this
end colonies Hke Rhode Island and Connecticut, which
had rather liberal governments, should have their char-
ters abolished. The proprietary governments should
also be abolished and all brought under the direct rule
of the king. This being done, a union might be formed
on the general plan of a captain-general or head of some
sort, with a council composed of two representatives
from each province. This, he said, would be like the
Amphictyonic Council of the ancient states of Greece.
It would consider the common affairs of war and trade,
and might also consider whether the laws passed in the
different colonies should be confirmed or annulled.
This last was certainly a peculiar suggestion.
But almost every plan of union that appeared added
some development, and so we find even in this one the
236
Evolution of Federalism
first suggestion that the union should regulate the value
of money so that it should be uniform in all the prov-
inces,— a provision which afterwards appeared in nearly
all the plans until it took its place in the Constitution.
During the agitations over the stamp act and other
parliamentary measures which preceded the Revolution
there were congresses and meetings of delegates from
all the colonies, but no formal plan of union was pre-
pared. The congresses and meetings, however, were in
themselves acts of union, and could hardly have been
assembled so easily without the previous experience and
training of over a hundred years in unions for Indian
wars and treaties and to resist the French. The French
and Indian wars, which were just completed before the
stamp-act agitation began, had shown more plainly than
ever the need of union and at the same time strengthened
the feeling for it by giving the people for the first time
a common bond of sympathy against a common enemy.
There is nothing so effective as a foreign enemy and
invader for driving a people into union, and there has
been an instance of it in our own time in the unifica-
tion of Germany after the Franco-Prussian War.
In the case of the colonies the unifying tendency of
the French enemy was followed immediately by the
appearance of another enemy, — the British Parliament
and king, — and under the pressure of this new invader
delegates from all the colonies met together naturally
and easily. They drew up no plan or rules of union,
for the cause of their union had become too plain for
rules. But their debates assisted the development
towards federalism. They discussed for the first time
237
Evolution of the Constitution
the rights and privileges of the colonies as a whole,
reviewed their history, and generalized their liberties.
The unity of feeling among them was strongly shown
in the non-importation agreement, under which they vol-
untarily deprived themselves of foreign luxuries and set
to work to increase their own arts and manufactures as
well as their flocks and herds. They agreed upon the
most rigid economy among themselves. On the death of
a relation, "none of us," says the agreement, "will go
into any further mourning dress than a black crape or
ribbon on the arm or hat for gentlemen and a black
ribbon and necklace for ladies, and we will discontinue
the giving of gloves and scarfs at funerals." When sov-
ereign states meet together and are willing to give up
conveniences, privileges, or rights for the benefit of all,
they have taken the first step beyond a mere league
and in the direction of federalism.
The Continental Congress assembled in 1774, without
any definite form of government, and went on from day
to day and year to year conducting a war, organizing
an army, and raising money by tacit understanding,
with no written instrument, charter, or constitution to
guide it Three plans for a general government were
suggested and debated by its members from time to
time ; but four years passed before any one of them
was adopted, and in that time the Congress was sup-
ported in its authority and its important measures by
nothing more than general opinion.
The three plans of government that were debated by
the Congress were Galloway's Plan of 1 774, Franklin's
Plan of 1775, and the Articles of Confederation, which
238
Evolution of Federalism
were prepared in l^^(>, but not finally adopted and ap-
proved by Congress until i//^*
Galloway's plan was avowedly intended to prevent
independence and unite the colonies among themselves
and with the mother-country in a way that should pre-
serve their liberties. The greater part of it is a mere
copy of Franklin's plan of 1754. The local rights of
each colony are first of all guaranteed, and there were
to be a president-general appointed by the Crown, and
a grand council elected by the colonies every three
years, each colony to have representation in proportion
to its importance. The president was to have the veto
power and execute the laws, and the grand council was
to have all the rights and privileges of the House of
Commons of Great Britain. The legislative power given
to the grand council was very broad and vague, and
might have meant almost anything. The council were to
" exercise all the legislative rights, powers, and authori-
ties necessary for regulating and administering all the
general police and affairs of the colonies, in which
Great Britain and the colonies, or any of them, the
colonies in general, or more than one colony, are in
any manner concerned, as well civil and criminal as
commercial."
This was certainly an enormous stride towards federal-
ism, and would have given the grand council far more
power than is now possessed by the Congress of the
United States.
But besides this the grand council was to be a branch
of the British legislature, and in all general colonial
matters the two were to be a check on each other.
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Evolution of the Constitution
Either could originate colonial legislation, but no act
was to be valid without the consent of both, except
money-bills for aid to the Crown in war, which might
become valid when approved by the grand council and
the president without the assent of the British Par-
liament.
This plan seems to have at one time met with the
approval of a majority of the Congress. But afterwards,
when the feeling against England had increased, the
plan and all debate on it were ordered to be stricken
from the records.
Franklin's plan of the following year also contem-
plated a reconciliation with England, but only as a
future contingency, and there was no suggestion of di-
rect connection with the British Parliament. It was a
plan for an independent government, which should be
perpetually independent unless reconciliation with the
mother-country were effected. It was not so strong in its
federalism as Galloway's plan ; yet it was a considerable
advance on plans previous to his, and showed how the
idea was progressing.
The description of the rights of the States, the sub-
jects over which they should retain jurisdiction, and the
matters which should be under the control of the gen-
eral government is in Franklin's plan very clear and
somewhat like the modern way of expressing it The
plan, however, is intended to be suggestive in its form,
and consists principally of general heads to be worked
out afterwards in detail. Of this sort is the third arti-
cle, which says that each colony shall " retain as much
as it may think fit of its own present laws, customs,
240
Evolution of Federalism
rights, privileges, and peculiar jurisdiction within its own
limits and may amend its own constitution as shall seem
best" The power and duty of Congress are clearly de-
fined, and are to extend to war and peace, sending and
receiving ambassadors, entering into alliance, settling
boundary disputes and all other disputes between the
colonies ; and Congress is given power over all other
matters which are necessary to the general welfare and
cannot be well controlled by the assemblies of the in-
dividual States, — viz., regulations for general commerce,
general currency, the post-office, and the army.
This was a large delegation of power. The assign-
ing of the right of declaring war and peace to Congress
shows how persistent was the tendency among our
people to give this power to the legislative department
instead of to the executive. The sending and receiving
of ambassadors and the entering into alliances were, of
course, new, because the people were now acting inde-
pendently of the mother-country, and it was necessary
that their government should have this attribute of
sovereignty. The settlement of boundary disputes be-
tween colonies arose out of the circumstances of the
time. There had been great difficulty over boundary
questions between New Hampshire and Vermont, New
York and Vermont, Pennsylvania and Connecticut, Penn-
sylvania and Maryland, and Pennsylvania and Virginia.
Several of these disputes, notably those between Penn-
sylvania and Connecticut and Pennsylvania and Mary-
land, had already resulted in bloodshed and petty civil
war. It had been found impossible to settle them except
after long litigation before the Privy Council in England,
i6 241
Evolution of the Constitution
which, in the case of the dispute between Pennsylvania
and Maryland, lasted for over seventy years.
The settling of all other differences between colonies
was also an item of power that had never appeared in
any other plan. But the power to regulate the cur-
rency, the establishment of a post-office, and the regu-
lation of commerce and of the army had appeared in
other plans.
The power to appoint both civil and military officers
was given by Franklin to Congress, and not to the ex-
ecutive. In fact, Congress was the principal power.
The executive was very weak and inefficient, and was
to consist merely of an executive committee or council
composed of twelve members of Congress, who during
the recess of the Congress should manage the general
continental business, receive applications from foreign
countries, prepare matters for the consideration of the
next meeting of Congress, and fill such offices as during
the recess should become vacant. An executive of this
sort, composed of a number of persons, was a favorite
notion of Franklin's, and was adopted in the constitution
of Pennsylvania of 1776, largely, no doubt, through his
influence. It was also adopted in the Articles of Con-
federation, principally because the people were very
jealous of executive power and feared leaving it in the
hands of one man.
The year after Franklin's plan was presented the
Articles of Confederation were prepared. This was in
the spring of 1776, when the movement towards the
declaration of independence was in progress, and it
seemed absolutely necessary to have some definite
242
Evolution of Federalism
form of government for the united colonies. It was
therefore the most serious and earnest attempt that
had ever been made to frame a union and general
government.
The attempts at union in the previous hundred years
had been no stronger than desires for greater con-
venience in managing general affairs. If they failed,
nothing much was lost The colonies were no worse
off than before, and still had the mother-country to rely
on. But now, if independence was declared, the colo-
nies would be adrift in the world, and must take their
place as a regularly organized nation or perish. It
would be extremely difficult to conduct the war and
afterwards stand before the world as an independent
people unless they had a regular form of government,
which would enable them to send and receive ambassa-
dors, make alliances with foreign countries, and organize
their own forces of men, money, and opinion in an
efficient manner.
At the same time that the Declaration of Indepen-
dence was being debated and shaped, the Continentcil
Congress was considering with equal energy the Articles
of Confederation, which were to form the most complete
and advanced general government that had yet ap-
peared. The subject was referred to a committee on
June 12, 1 776,* and the committee reported July 12,
soon after the Declaration of Independence was adopted.
The articles of the new government were exhaustively
debated and amended from time to time for the next
two years, and were signed by the members of Con-
gress July 9, 1778. After that three more years passed
243
Evolution of the Constitution
away while they were discussed by the different States,
and changes suggested. They were ratified slowly, and
the adoption of them was not complete until Maryland
gave her consent, March i, 1781.
The care which was required, the long years of de-
bate, the balancing and compromising of objections and
conflicting interests, show that after all the experience
and attempts of the previous hundred years it was still
a difficult matter to frame a general government that
should be more than a mere league or alliance. Yet
without the previous attempts it could not have been '
done ; for when we read over the completed Articles
of Confederation we find them made up of everything
that had before appeared in plans of union, with additions
and careful elaborations.
The first draught of the Articles that was submitted
to Congress had more resemblance to Franklin's plan
of the year before, and was simpler in language, than the
completed copy that was ratified by the States. The
completed Articles, however, begin as many of the pre-
vious plans had begun, — by guaranteeing to each State
its local rights and liberties. But this guarantee is ex-
pressed more completely and better than ever before.
Each State is to retain its sovereignty, freedom, and
independence, and every power, jurisdiction, and right
which is not by the Articles expressly delegated to the
United States in Congress assembled. At the same
time, the States agree, in very much the same form that
they had formerly agreed in the plans, to enter into a
firm league of friendship with one another for their
common defence and general welfare.
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Evolution of Federalism
The problem which the New England union of 1643
and Penn's plan of 1696 had struggled with, that is to
say the inconveniences in the intercourse of the States,
is dealt with in greater detail than formerly. The
people of each State are to have free ingress and regress
in all the others, enjoy the same privileges and immu-
nities in trade and commerce, be subject to the same
duties and restrictions, and persons charged with crime
and fleeing into another State are to be delivered up.
Then appears a new provision, to the effect that full
faith and credit shall be g^ven in each State to the
records and judicial proceedings of every other State,
which was repeated in a slightly simplified form in the
Constitution.
The general outline of the legislative department fol-
lows very closely the old forms. Each State is to send
delegates to a general legislative body called the Con-
gress. The question which had been so long discussed
as to whether the States should be represented equally
or in proportion to their population is settled by a com-
promise. Each State is to have delegates in propor-
tion to its power, but no State shall be represented by
less than two nor by more than seven. This was in con-
formity with the suggestions of Franklin and others in
the past But the other side, who believed in equal rep-
resentation, were quieted by the provision that although
each State had a proportional representation, yet all its
delegates together could have only one vote. A large,
powerful State would, therefore, have influence by mere
numbers and speech-making in proportion to its power,
but when it came to a vote on any question its vote
245
Evolution of the Constitution
would be no larger than that of the smallest community.
This balancing arrangement was afterwards the basis
for those provisions in the Constitution by which the
representation in the House of Representatives was in
proportion to population and in the Senate by equality
of States.
Franklin's plan of an executive composed of a com-
mittee of members of Congress was carried out, and this
committee was given the right to act in the recess of
Congress in very much the way Franklin had recom-
mended.
Freedom of speech in the Congress was secured, and
the same paragraph also protected members from arrest
and imprisonment during the session. This was a new
provision made necessary by the greater importance of
the government that was being created. For the same
reason the individual States were forbidden to send any
embassy to or to treat in any way with foreign countries.
Persons holding any office under the United States or
any of the States were forbidden to receive any present,
emolument, or title from a foreign state ; and the United
States and the individual States were forbidden to grant
any title of nobility. The States were also forbidden to
enter into treaties or alliances with one another without
the consent of Congress ; nor could they lay imposts or
duties which might interfere with stipulations and treaties
made by the Congress ; nor could they keep up any
larger war establishment than was deemed necessary by
the Congress ; nor engage in war without the consent of
Congress unless they were actually invaded or had cer-
tain advice of a contemplated invasion by Indians so
246
Evolution of Federalism
imminent as not to admit of delay ; nor could they com-
mission vessels of war or grant letters of marque except
after a declaration of war by the Congress.
These provisions were necessarily new, but the one
which forbids the States to make war on their own ac-
count unless actually invaded or threatened with invasion
by the Indians is very like the provisions for the same
purpose in the old plans of union, especially the New
England union of 1643.
Officers of the army of and below the rank of colonel
were to be appointed by the legislature of the State
where the troops were raised, and officers above that
rank by the Congress. The expenses of war and gov-
ernment were to be raised from the States and paid into
a common fund in very much the same manner as in the
previous plans, but the taxes were to be laid and levied
by each State on its own people. Some of the previous
plans, notably Franklin's of 1754, had, as we have seen,
given the general government power to lay and levy
these taxes. This had been a long step towards federal-
ism,— in fact, rather too long. The people were not
prepared for it, and were uncertain about allowing it
We find it appearing and disappearing in the various
plans until it is established in the Constitution.
The powers given to the general government are, of
course, interesting, but they are not so large nor so
numerous as we might expect Some of them had be-
come absolutely necessary by the new circumstances of
independence, such as the powers to send and receive
ambassadors, enter into treaties and alliances, establish
rules for captures on land and water, grant letters of
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Evolution of the Constitution
marque, and establish courts to punish piracy and crimes
committed at sea.
The powers to regulate afifairs with the Indians and to
establish a post-office were of course given, but were not
new. The sole power of determining peace and war is
given to the Congress, as it had in all previous plans
been given to the legislative department The provision
in Franklin's plan giving Congress the power to settle
boundary disputes between the States is repeated in a
more elaborate form. There is also the new and very
important right of fixing the standard of weights and
measures.
There was no power given to regulate commerce,
which is rather curious, as it had been given in previous
plans. It might possibly have been inferred from the
power to make commercial treaties. The general opin-
ion seems to have been, however, that it was purposely
omitted. The New Jersey legislature complained of
its omission, and urged Congress to insert it by amend-
ment ; and as time went on the complaints on this point
became numerous.
The few powers allowed Congress were restricted by
a clause which prohibited the exercise of most of them
except by the assent of nine of the thirteen States. Of
the executive power still greater jealousy was shown,
and for fear the presiding officer of the Congress might
grow into a king they limited his term of service to one
year, after which he was to be ineligible for re-election
for two years. Even the committee of thirteen, which
was to act as a sort of executive in the recess of Con-
gress, could have no power delegated to it except by
248
Evolution of Federalism
the votes of nine States, and the special powers that
could not be exercised by Congress except by the vote
of nine States could not be delegated to the committee.
It was unquestionably a very weak government, — a
mere league with so few of the attributes of federalism,
and those few so restricted, that it was not a federal or
a national government in any true sense of the word.
The fashion has prevailed for a long time of attacking
it in very severe terms, and even of questioning the
patriotism of the men who framed it But we must
remember that it was simply a link in a long chain of
evolution which had been progressing for over a hun-
dred years, and continued, as we shall see, in the same
steady course. It was a great advance on all the plans
that had preceded it, and, for purposes of development,
that was all that was required.
The criticisms on its lack of federal power began
almost as soon as it appeared. When signed by the
members of Congress and sent to the States for ratifica-
tion in 1778, most of those States had finished their
new constitutions, on which they had been engaged for
several years. Constitution-making was the order of
the day ; everybody was prepared for discussion, and
no previous plan of union received such serious and
trained consideration.
Though the prevailing sentiment seems to have been
that not enough power was given, there were many who
saw in the Articles of Confederation a menace to the sov-
ereignty of the States. But even this State-rights party,
while they wished greater safeguards for local liberty,
wanted at the same time more power and efficiency in
249
Evolution of the Constitution
the general government : so inevitable is the develop-
ment of a thought when once fairly started on its way.
In South Carolina, William Henry Drayton, chief
justice of the State, addressed the assembly when the
Articles came before them for approval. He was an
able, accomplished man, and in the course of his speech
he laid before them a plan of union of his own, which
has ever since been known by his name. It was simply
a redraughting of the Articles in his own language, with
additions and developments. He wished to secure the
rights of the States, and especially the Southern inter-
est ; and he even went so far as to provide that each
State should not only keep up such military establish-
ment as it pleased, but should have a " naval seminary."
Nevertheless he developed the federal power, and
strongly urged the necessity for it
He gave Congress the right to define treason and its
punishment and the right to levy taxes independently of
the States. The right to levy taxes, though omitted in
the Articles, had appeared, as we have seen, in previous
plans, and was now again introduced. But the right to
define and punish treason was new, and a distinct mark
of the increase of federal feeling ; for treason is a crime
against a nation, not against a league or union.
He created regular executive departments of war,
navy, and treasury. He also provided for a census to
be taken every seven years ; but it was to be taken by
each State, and not by the general government in the
manner afterwards adopted. His greatest advance in
federalism, however, was a provision to the effect that
if a State failed to pay its quota it was to be assessed
250
Evolution of Federalism
double, and if it still refused it was to be subdued and
brought to terms by Congress by force of arms.
This was the first method any one had formulated for
compelling obedience to the commands of the confed-
eracy. The weakness of Congress in this respect, and
the mere advisory nature of all its acts, had been the
chief points of criticism. The only remedy that Drayton
could think of was for Congress to make war on the
offending State. People's minds still clung to the idea
that everything must be done through the States. They
had not as yet advanced to the conception of a general
government which enforced its commands on the people
as individuals without regard to State lines. They had
partially developed this thought by suggesting that the
government levy taxes on the people at large ; but it
had gone no farther.
Drayton was very liberal in his grants of federal
power ; but, at the same time, like the framers of the
Articles, he cramped and injured all he gave by re-
quiring that all important acts of the Congress must
have the assent of eleven out of the thirteen States, — an
increase of two over the number required in the Articles.
For the next ten years the efforts for stronger feder-
alism were continuous. In 1780 New York and the
New England States met by delegates at Hartford and
recommended that more power for coercing the States
be given to Congress. This report was read in Con-
gress, and Pennsylvania and New Jersey supported it
A committee of Congress also recommended an in-
crease of power.
In 1782 there was a movement in New York to call
251
Evolution of the Constitution
a convention to revise the Articles, but nothing came of
it More nearly successful was the attempt to give
Congress the power to levy duties on imports, — a sugges-
tion for increased power, which now took definite shape.
It was assented to by all the States except Rhode Island,
but while efforts were being made to secure Rhode
Island Virginia withdrew her approval.
The war with England was now over, and great diffi-
culties were immediately experienced because Congress
had not been given the power to regulate commerce.
Each State was making its own regulations, and the
British government, seeing its opportunity to break up
the union, undertook to deal with each State separately,
and prohibited American ships from trading with Eng-
lish colonies. It seemed as if the Revolution had been
fought in vain. Congress attempted to gain prohibitory
powers over commerce for fifteen years by the assent of
nine States, but without success, Washington, Jefferson,
and other leading men made most earnest exertions,
and Washington, from his retirement at Mount Vernon,
sent urgent letters to Congress and the governors of all
the States. But the government grew weaker instead
of stronger, and at the session of Congress in 1784 four
States were absent, three withdrew in disgust, and the
remaining delegates returned home.
It was at this time that Noah Webster's pamphlet,
"Sketches of American Policy," appeared. It urged
with much force that the government act directly on
the people at large instead of on the States, and that
the general government be modelled on the forms of
the State governments.
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Evolution of Federalism
These two suggestions, taken together, were the most
important and far-reaching that had thus far been made
by any one man. The conception of the general gov-
ernment at that time, as it had developed out of the old
plans of union, was that it should consist of a simple
representative body which should transact all the busi-
ness of the union, executive as well as legislative. There
was no separate executive department, — for the execu-
tive committee was merely a committee of Congress and
its powers were very much restricted, — and there was
no judicial department unless Congress chose to create
one, and even if created by Congress its jurisdiction
would be confined to cases of piracy, capture, and felo-
nies committed on the high seas.
Webster suggested that all this primitive arrangement
be abolished, and that the double-branch legislature, with
the distinct executive and judicial departments that pre-
vailed in the State governments, be adopted. It was a
fertile suggestion, and seems to have settled the question,
for when the convention met in 1787 the minds of its
members were made up on this point Thus the two
lines of development of which we have been treating
joined their forces in the convention that framed the
Constitution, — the line that had been developing the
administrative parts of government from Sir Walter
Raleigh's charter of 1584 through the charters and con-
stitutions of colonial times and the constitutions of 1 776,
and the line that had been developing federalism from
the New England union of 1643.
Webster seems to have been the first person who
wrote of the importance of joining these two lines of
253
Evolution of the Constitution
development, and he has not yet received full credit
for it His other suggestion was of equal if not greater
importance, namely, that the government should act
directly on individuals instead of on the States, and,
although there seems to be no passage in the pamphlet
which announces this doctrine in so many words, there
are several which imply it. He wrote to Madison com-
plaining that he had not received the full reward of
recognition, and Madison replied that his services were
well known and recognized. His pamphlet has now
become very scarce and should be reprinted, for there
seem to be only two copies of it in existence, — one in
the Boston Athenaeum and the other in a collection in
Brooklyn.
But, in spite of plans, suggestions, and appeals to
patriotism, the confusion was becoming greater. Each
State was regulating its own commerce, duties on imports
were unequal, and the States were discriminating against
one another and soon began to levy duties on one an-
other's goods as if each had been a foreign country to all
the others. The currency of each State also varied from
the currency of all the others, each had its own financial
laws, and some of them passed stay laws and had other
contrivances to prevent the collection of debts. The
masses of the people, overwhelmed with debt, were clam-
oring for fresh issues of paper money. Some of them
became anarchists and preached the abolition of all
courts and law. In Massachusetts and New Hampshire
these wild opinions brought on actual riot and rebellion ;
the courts were dispersed and the legislature intimidated
by armed mobs.
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Evolution of Federalism
In the midst of all this demoralization, in the year
1785, Maryland and Virginia wanted to connect the
Potomac with the Ohio for the sake of their commercial
interests, and Maryland, Pennsylvania, and Delaware
wanted a canal to connect the Chesapeake with the
Delaware. This slight bond of common commercial
interest among four States led to the suggestion of a
convention to regulate the commerce of the whole
Union. The first meeting at Annapolis was of five
States, — New York, New Jersey, Delaware, Pennsyl-
vania, and Virginia, — and after a short session the mem-
bers adjourned, with a recommendation for a meeting
of all the States to devise measures for a general govern-
ment adequate to the exigencies of the Union.
In the mean time a committee of Congress recom-
mended that the Articles be amended so as to give Con-
gress power to regulate foreign and domestic trade,
collect duties, punish treason and crimes on the high
seas, create a new system of revenue, and establish an
appellate court of seven judges with jurisdiction over
certain general questions. The suggestion that Congress
regulate domestic trade was new. All previous powers
over commerce referred to foreign commerce alone.
But the last suggestion of all — the idea of an appellate
federal court — was not only new, but striking, and
marks the beginning of the federal judiciary.
The States were now gradually giving their approval
to the assembling of a general convention, and it met in
May, 1787, at Philadelphia. A few days after it had
assembled, Randolph, of Virginia, presented some gen-
eral propositions to show how the Articles of Confedera-
255
Evolution of the Constitution
lion might be enlarged. This plan of Randolph's adopts
partially the idea set forth by Noah Webster that the
general government should act directly on the people
instead of on the States.
He adopts, however, in its fulness, that other idea of
Webster's, that the arrangement of a single representa-
tive body acting as legislature and executive be aban-
doned and that the government be framed on the model
of the State governments, with separate departments of
legislature, executive, and judiciary. Randolph's plan
was the first attempt to carry out this idea, and we
find him providing for two houses of legislature, an ex-
ecutive elected by the legislature, and a judiciary de-
partment consisting of an appellate court and inferior
tribunals.
The jurisdiction given the judiciary is expressed
vaguely, but is quite large, and contains the germs of
a great deal that was afterwards given. Piracies and
felonies on the seas and captures from enemies he of
course included, and these had appeared before ; but he
adds cases of revenue collection and cases in which
foreigners and citizens of other States may be interested.
Thus an important part of the present jurisdiction of the
United States courts — namely, suits between citizens of
different States — was distinctly suggested. He added
the very vague jurisdiction of " questions which involve
the national peace and harmony," and he also referred
to these courts " impeachments of any national officer."
He recommended for the first time that a republican
form of government and the integrity of its territory be
guaranteed to each State. Representation in both
256
Evolution of Federalism
houses of the legislature was to be in proportion to the
quotas of contribution or to the number of free inhab-
itants, " as the one or the other might seem best in differ-
ent cases." The lower house was to be elected by the
people of the several States, and here he followed Web-
ster's general recommendation that the government
should be of the people at large, and not a mere repre-
sentation of States.
The upper house was to be elected by the lower out
of a proper number of persons nominated by the indi-
vidual legislatures. Certainly a rather strange sugges-
tion, yet showing a hint of the future Senate as the
representative of the States.
In giving power to the legislature he said that it
should have the same that was already exercised by
Congress under the Articles of Confederation, and also
should legislate in all cases in which the separate States
were incompetent or in which the harmony of the
United States might be interrupted by individual legis-
lation. This was very general, and, when filled in with
a few particular instances, would be ample.
The coercive power to enforce commands, which was
so lacking in Congress under the Articles, he attempted
to supply, as Drayton had attempted, by giving power
" to call forth the force of the Union against any member
of the Union failing to fulfil its duty."
But the most curious provision was a grant to the
legislature of power to negative all laws passed by the
several States contravening the articles of union. This
was an attempt to prevent unconstitutional legislation,
as we should now call it The necessity of some such
«7 257
Evolution of the Constitution
provision had been long felt, even in colonial times, and
we have already considered the remedies proposed, from
that in Locke's constitution for Carolina down to the
council of censors in the Pennsylvania constitution of
1776.
Besides the power in the national legislature to nega-
tive unconstitutional laws of the States, Randolph added
another security, in a council of revision composed of
the executive and " a convenient number of the national
judiciary," which should examine the acts not only of
the State legislatures but also of the national legislature.
The dissent of this council in the case of an act of the
national legislature was to be a rejection unless the act
were passed again. In the case of acts of State legis-
latures the council was apparently intended to act as
a check upon the national legislature's declaring them
unconstitutional 'The council was to consider the act
in question before the negative of the national legisla-
ture became final, and if the council dissented the act
of the State was to stand valid unless again negatived by
the national legislature. This arrangement seems to
have been a combination of the plan of Locke and the
council of censors of Pennsylvania.
Immediately after Randolph had presented his plan,
Charles Pinckney, of South Carolina, presented another,
still more advanced and complete, and so nearly like
the Constitution as finally adopted that at first sight
there seems to be scarcely any difference. It was a more
definite and detailed plan than Randolph's, which pro-
fessed to be nothing but general heads and suggestions.
It adopts in their entirety the two great ideas put
258
Evolution of Federalism
forth by Webster, that the government should act di-
rectly on the people and that it should be modelled on
the State governments. Instead of beginning with the
assertion that the States as separate bodies form the
government, it begins with the words, " We the people
of the States do ordain, declare," etc., — the first use of
this expression. Everything that had been in Ran-
dolph's plan, the Articles of Confederation, and all the
previous plans seems to have been swept into this plan
of Pinckney's. He amplifies and extends everything,
adds new developments, and adopts more than ever the
forms of the State governments.
He has, of course, two houses of legislature, and, like
Randolph, he has the upper house elected by the lower
house, with the same suggestion that a certain number
shall be chosen from each State, and that it shall repre-
sent the States as the lower house represents the peo-
ple. Money-bills must originate in the lower house,
and cannot be altered by th^ Senate. This was taken
from the State constitutions, and appears here for the
first time in a federal document The executive is called
President, and is given the modified veto power taken
from the constitution of New York, as shown in a pre-
vious chapter, and the duty of furnishing information to
the legislature, which was a provision taken from the
same source. He is to take care that the laws be
duly executed, commission all officers, grant pardons
and reprieves, be commander-in-chief of the army and
navy, — all of which are ideas taken from the various
constitutions of the States.
The powers granted to the legislature are given almost
359
Evolution of the Constitution
in the very words afterwards adopted in the Constitu-
tion. Everything that had been previously suggested
is included. The legislative department is to lay and
collect not only taxes, but also duties, imposts, and ex-
cises ; to regulate commerce with foreign nations, and
among the several States, borrow money, establish post-
offices, raise armies, equip fleets, coin money, establish
a judiciary, and punish treason.
The new powers are to subdue a rebellion in any State
on the application of its legislature ; to exercise exclu-
sive jurisdiction in dock-yards, arsenals, and forts ; to
establish military and post roads, a university, and uni-
form rules of naturalization ; to have exclusive juris-
diction in a tract of land ten miles square for the seat
of government ; to punish counterfeiting and offences
against the laws of nations ; to organize the militia of
the several States ; and, finally, a very necessary addition,
— namely, the right " to make all laws necessary for
carrying the foregoing powers into execution."
The power to declare war was given exclusively to
the Senate, also the power to appoint ambassadors and
judges of the Supreme Court and to regulate the man-
ner of deciding boundary disputes between the States.
The power to regulate commerce was slightly re-
stricted by the requirement of the eissent of two-thirds
of each house ; and both houses were prohibited from
granting any title of nobility or passing any law on the
subject of religion or abridging the liberty of the press.
The privilege of the writ of habeas corpus was not to
be suspended except in case of rebellion or invasion, as
in the Massachusetts constitution of 1780.
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Evolution of Federalism
It was certainly a very advanced and complete con-
stitution. The restrictions on the rights of the States,
however, were very much the same that had appeared
before, and not so numerous as they afterwards became
in the Constitution. There was no provision for pre-
venting the passage of unconstitutional laws by the gen-
eral government, but the States were prevented from it
by giving the national legislature the right to annul
their laws, as Randolph had suggested.
Two other plans were afterwards offered to the con-
vention, one by Paterson, of New Jersey, and the other
by Alexander Hamilton. But neither of them was as
complete as Pinckney's, and they seem to have been
aside from the line of development Pinckney's was
directly in the line, and so close to the Constitution as
adopted, not only in its general provisions, but also in
language, that the difference can be dismissed in a few
words.
Pinckney's plan began with the words, "We the
people of the States of New Hampshire, Massachusetts,"
etc., mentioning each one. The Constitution begins,
"We the people of the United States," getting still
closer to the conception that it is the people, and not
the States, that create the government In the Consti-
tution the Senate is elected by the legislatures of the
different States, two from each State, instead of being
elected by the lower house from citizens in each State,
as in Pinckney's and Randolph's plans. In the Consti-
tution the Senate is to try impeachments instead of the
judiciary ; a vice-president is added, and duties, im-
posts, and excises must be uniform throughout the
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Evolution of the Constitution
United States. In the powers of Congress there are
the new ones of regulating commerce with the Indian
tribes, establishing uniform laws on the subject of
bankruptcies, and granting patents and copyrights.
The others are all taken from Pinckney's plan, in many
instances word for word.
The President's powers in the Constitution differ
somewhat from those given in Pinckney's plan. The
President shares with the Senate the right to make
treaties and to appoint ambassadors and judges, which
Pinckney gave exclusively to the Senate ; and the judi-
cial department has a wider scope than Pinckney
gave it
The provision in the Constitution prohibiting the
States from passing any law impairing the obligation of
contracts was altogether new, and requires some discus-
sion. It was unknown to any of the laws of Europe or,
indeed, of the world, and seems to have been altogether
the result of some very bitter experience in Pennsyl-
vania. It was introduced into the Constitution by James
Wilson, one of the delegates from that State.
During colonial times, the College of Philadelphia,
founded by Franklin, had been in the hands of the
Church of England people and the proprietary party of
the colony. The provost of the college. Dr. Smith, had
been a party man of considerable violence, and the col-
lege. Dr. Smith, and the proprietary party were greatly
disliked by the masses of the people in Pennsylvania.
When the Revolution came the masses got into power
and proceeded to revenge themselves on their old ene-
mies. They drove from office, and even from social
262
Evolution of Federalism
influence, the class of men who had formerly ruled the
commonwealth, until that class were gathered together
in the college as their last stronghold.
Among this class were Robert Morris and James
Wilson, signers of the Declaration of Independence, who
stood high in national councils, but were in a minority
in the government of their State. The majority saw an
opportunity to injure them by destroying their college,
and an act of the State legislature was* passed in No-
vember, 1779, declaring the college charter void, dis-
solving the board of trustees and the faculty, and giving
all the property of the institution to new trustees, who
were, of course, selected by the majority party. This
was a severe blow to the interests of higher education in
Pennsylvania, from which they are only just recovering.
The new college created on the ruins of the old one
was a failure, and in 1789 the legislature repented of
its act of spoliation and returned the confiscated prop-
erty to the old College of PhiladelphicL The two col-
leges— the old, restored one and the new one — existed
side by side for some years, until at last a union was
effected which produced the present University of Penn-
sylvania.
This spoliation of the college had been done in the
teeth of a provision of the State constitution which pro-
tected chartered institutions from such attacks. But
there was no way of enforcing the State constitution,
and the legislature did what it pleased. People began
to realize that all educational institutions, as well as
charitable and business enterprises, were at the mercy
of the State legislature, and this feeling was intensified
263
Evolution of the Constitution
when the same legislature, in 1785, annulled the charter
of the Bank of North America. Something, it was gen-
erally believed, must be done to give the new national
government the power to prevent such deeds. Wilson,
who had been a friend and supporter of both the bank
and the college, solved the problem by providing in the
national document that " no State shall pass any law
impairing the obligation of contracts." It is a simple,
short sentence', but it has stood the test of nearly a hun-
dred years of judicial decision, and the principle is now
well established that the granting of a charter is a con-
tract between the legislature and the corporation which
cannot afterwards be impaired or altered by the legis-
lature without the corporation's consent.
Under this decision has been built up the enormous
power of railroads, manufactories, and other business
corporations which have played so important a part
in the development of the United States. This simple
sentence, backed by the power of the general govern-
ment, has protected those enterprises from Granger,
Populist, and other fanatical movements in different
States which would otherwise have crippled or destroyed
them. Sometimes a belief has seemed to be gaining
ground that this clause protected the corporations too
well, and gave them too much power ; but the havoc
that State legislatures committed before there was such
protection seems to show that if the protection is ex-
cessive it is excess on the safer side. It has given a
stability to investments and enterprises, commercial as
well as religious, collegiate, and scientific, which could
not have been had without it
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Evolution of Federalism
When the Constitution was finally adopted by the
people in 1789, the desire for a firmer union and stronger
government was gratified, and development almost
ceased. The hundred years that have since elapsed
have brought little change except a few amendments
extending somewhat the federal power over the States,
and some restricting the federal power. The first eleven
amendments are usually considered as a part of the
original Constitution, because they were adopted imme-
diately after the Constitution went into effect, and they
contain, for the most part, those bills-of-rights pro-
visions, securing trial by jury, freedom of religion and
of the press, and freedom from unreasonable search,
which, as we have seen, had grown up as restrictions on
the power of the individual States. The people insisted
that there should be similar restrictions on the national
government
The essential features of the Constitution, however,
are unchanged. The Senate and the House of Repre-
sentatives and their relations to each other are the same.
The President and his duties and relations to Congress
have not ciltered. In fact, our government has been
in these respects almost stationary during a century in
which the most conservative European governments
have suffered considerable change.
Not only have the administrative parts of the govern-
ment which were evolved from the forms of the State
constitutions remained unchanged, but the federalism,
the nationality, and the indestructibility of the Union
are unaltered. As soon as the new Constitution was sub-
mitted to the States for approval in 1 788, the party that
265
Evolution of the Constitution
had always been jealous of any interference with State
rights complained bitterly that it was a national govern-
ment, and not a confederacy, — that it was a creation of
the people, and not of the States. Opposition to its
approval was organized on this ground, and the debates
of the State conventions, especially those of Virginia,
Maryland, and Pennsylvania, disclose in full the argu-
ments of those who urged its rejection, because, as
Patrick Henry put it, the opening sentence was "We
the people" instead of "We the States." But the ma-
jority of the people ratified it in the form the framers
gave it and intended to give it, — a national Union which
could be broken only by rebellion and revolution.
266
CHAPTER VII.
THE EVOLUTION OF FEDERALISM SHOWN IN DETAIL.
I. Union and Representation.
This section shows the beginnings of the various plans
of union, and also the attempts to solve the question
how the provinces should be represented in a union.
It was thought by some that the provinces should be
all equal in their representation, and by others that each
should be represented according to its population, or
power, or by the amount of its contribution towards the
objects of the union. The small provinces, of course,
favored equal representation, and the large ones repre-
sentation by population or power. It seems probable,
however, that there was a majority in favor of repre-
sentation by population, but all were agreed that it
could not be accomplished without an accurate census,
which in colonial times was difficult to obtain.
Attempts were made to satisfy all parties by giving
representatives to each province according to its popu-
lation, but allowing each province only one vote. In
the Constitution this same plan was carried out by allow-
ing representation by population in the lower house and
representation by States in the Senate, and for carrying
this into effect it was provided that a census should be
taken every ten years.
Some quotations from State constitutions are given
because they show the development of the idea that
representation should be based on an accurate enumera-
267
Evolution of the Constitution
tion of the people. In England the representation in
Parliament was not based on any such enumeration, but
was confessedly unequal, and large bodies of the people
were without any representation at all.
" It is also agreed that for the managing and concluding of all
affairs proper and concerning the whole confederation two com-
missioners shall be chosen by and out of each of these four juris-
dictions,— namely, two for the Massachusetts, two for Plymouth,
two for Connecticut, and two for New Haven, — ^beingall in church
fellowship with us." (New England Union of 1643.)
"That in order to it two persons well qualified for sense, so-
briety, and substance be appointed by each province as their
representatives or deputies, which, in the whole, make the congress
to consist of twenty persons." (Penn's Plan of Union, 1696.)
•' Deputies would be more equally proportioned in manner fol-
lowing,— viz. : Virginia, 4 ; Maryland, 3 ; New York, 2 ; Boston, 3 ;
Connecticut, 2 ; Rhode Island, 2 ; Pennsylvania, i ; the two Caro-
linas, I ; each of the two Jerseys, i." (A Virginian's Plan, 1701.)
" That the said captain-general ... be attended with a
general council, to be constituted of two members from the as-
sembly of each province, and that one representative or deputy
from each province be changed or re-elected every year, which
would the better inform the said council of the condition of every
province to the contributing towards the preservation of the
whole." (Lord Stair's Plan, 1721.)
"It is further humbly proposed that two deputies shall be
annually elected by the council and assembly of each province,
who are to be in the nature of a great council or general conven-
tion of the estates of the colonies, and by the order, consent, or
approbation of the lieutenant or governor-general, shall meet
together, consult, and advise for the good of the whole." (Daniel
Coxe's Plan, 1722.)
" That within months after the passing of such act the
house of representatives in the several assemblies that happened
to be sitting within that time, or that shall be especially for that
268
Federalism in Detail
purpose convened, may and shall choose members for the grand
council in the following proportions, that is to say :
'* Massachusetts Bay 7
New Hampshire 2
Connecticut 5
Rhode Island 2
New York 4
New Jerseys 3
Pennsylvania 6
Maryland 4
Vii^nia 7
North Carolina 4
South Carolina 4
"48
" That after the first three years, when the proportion of money
arising out of each colony to the general treasury can be known,
the number of members to be chosen for each colony shall from
time to time in all ensuing elections be regulated by that propor-
tion (yet so as that the number to be chosen by any one province
be not more than seven nor less than two)." (Frankhn's Plan
of 1754.)
" It is humbly proposed by act of parliament that the house of
representatives of each colony be enjoined, within a limited time
after the passing of such act, to choose members to represent
them in a grand council in the following proportion, viz. :
" Massachusetts Bay 7
Connecticut 5
New York 4
Pennsylvania 6
Virginia 7
South Carolina 4
New Hampshire 2
Rhode Island 2
New Jersey 3
Maryland 4
North Carolina 4
In the whole 48 "
(Hutchinson's Plan, 1754.)
269
Evolution of the Constitution
••That the several assemblies shall choose members for the
grand council in the following proportions, viz." [The propor-
tion for each colony is left blank.] (Galloway's Plan, 1774.)
"The number of delegates to be elected and sent to congress
by each colony shall be regulated, from time to time, by the
number of such polls returned, so as that one delegate be allowed
for every five thousand polls." (Frankhn's Articles of Confed-
eration, 1775.)
" But as representation in proportion to the number of taxable
inhabitants is the only principle which can at all times secure
liberty, and make the voice of a majority of the people the law of
the land ; therefore the general assembly shall cause complete
lists of the taxable inhabitants in the city and each county in the
commonwealth respectively, to be taken and returned to them, on
or before the last meeting of the assembly elected in the year
one thousand seven hundred and seventy-eight, who shall appoint
a representation to each, in proportion to the number of taxables
in such returns ; which representation shall continue for the next
seven years afterwards, at the end of which a new return of the
taxable inhabitants shall be made, and a representation agreeable
thereto appointed by the said assembly, and so on septennially
forever." (Pennsylvania Constitution of 1776.)
' • That as soon after the expiration of seven years (subsequent
to the termination of the present war) as may be a census of the
electors and inhabitants in this State be taken, under the direction
of the legislature. And if, on such census, it shall appear that
the number of representatives in assembly from the said counties
is not justly proportioned to the number of electors in the said
counties respectively, that the legislature do adjust and apportion
the same by that rule. And further, that once in every seven
years, after the taking of the said first census, a just account of
the electors resident in each county shall be taken, and if it shall
thereupon appear that the number of electors in any county shall
have increased or diminished one or more seventieth parts of the
whole number of electors, which, on the said first census, shall be
found in this State, the number of representatives for such county
shall be increased or diminished accordingly, that is to say, one
270
Federalism in Detail
representative for every seventieth part as aforesaid." (New
York Constitution of 1777.)
"For the more convenient management of the general inter-
ests of the United States, delegates shall be annually appointed
in such manner as the legislature of each state shall direct, to
meet in congress on the first Monday in November in every
year, with a power reserved to each state to recall its delegates,
or any of them, at any time within the year, and to send others
in their stead for the remainder of the year,
"No state shall be represented in congress by less than two
nor by more than seven members ; and no person shall be capa-
ble of being a delegate for more than three years, in any term of
six years ; nor shall any person, being a delegate, be capable of
holding any office under the United States for which he, or an-
other for his benefit, receives any salary, fees, or emolument of
any kind.
" Elach state shall maintain its own delegates in any meeting
of the states, and while they act as members of the committee
of the states.
"In determining questions in the United States in congjress
assembled, each state shall have one vote." (Articles of Con-
federation, 1778.)
' ' Each state shall be represented in congress by not less than
three nor more than seven delegates, and shall have one vote in
congress, where all questions shall be determined by a majority
of votes, except such as shall be hereafter mentioned." (Dray-
ton's Articles of Confederation, 1778.)
" That at the expiration of seven years after the passing of this
constitution, and at the end of every fourteen years thereafter, the
representation of the whole state shall be proportioned in the
most equal and just manner according to the particular and com-
parative strength and taxable property of the different parts of
the same, regard being always had to the number of white in-
habitants and such taxable property." (South Carolina Consti-
tution of 1778.)
" The rights of suffrage in the national legislature ought to be
proportioned to the quotas of contribution, or to the number of
271
Evolution of the Constitution
free inhabitants, as the one or the other rule may seem best in
different cases." (Randolph's Plan, 1787.)
"Until a census of the people shall be taken, in the manner
hereinafter mentioned, the house of delegates shall consist of
, to be chosen from the different states in the following pro-
portions : For New Hampshire, ; for Massachusetts, ; for
Rhode Island, ; for Connecticut, ; for New York,
for New Jersey, ; for Pennsylvania, ; for Delaware,
for Maryland, ; for Virginia, ; for North CaroHna,
for South Carolina, ; for Georgia, ; and the legislature
shall hereinafter regulate the number of delegates by the number
of inhabitants, according to the provisions hereinafter made, at the
rate of one for every thousand." (Pinckney's Plan, 1787.)
" Representatives and direct taxes shall be apportioned among
the several states which may be included within this Union, ac-
cording to their respective numbers, which shall be determined
by adding to the whole number of free persons, including those
bound to service for a term of years, and excluding Indians not
taxed, three-fifths of all other persons. The actual enumeration
shall be made within three years after the first meeting of the
Congress of the United States, and within every subsequent term
of ten years in such manner as they shall by law direct. The
number of representatives shall not exceed one for every thirty
thousand, but each state shall have at least one representative ;
and until such enumeration shall be made the State of New
Hampshire shall be entitled to choose three ; Massachusetts,
eight ; Rhode Island and Providence Plantations, one ; Con-
necticut, five ; New York, six ; New Jersey, four ; Pennsylvania,
eight ; Delaware, one ; Maryland, six ; Virginia, ten ; North
Carolina, five ; South Carolina, five ; and Georgia, three.
"The senate of the United States shall be composed of two
senators from each state." (The Constitution.)
"Representatives shall be apportioned among the several
states according to their respective numbers, counting the whole
number of persons in each state, excluding Indians not taxed.
But when the right to vote at any election for the choice of electors
for President and Vice-President of the United States, representa-
272
Federalism in Detail
tives in congress, the executive and judicial officers of a state,
or the members of the legislature thereof, is denied to any of the
male inhabitants of such state, being twenty-one years of age and
citizens of the United States, or in any way abridged, except for
participation in rebellion or other crime, the basis of representa-
tion therein shall be reduced in the proportion which the number
of such male citizens shall bear to the whole number of male
citizens twenty-one years of age in such state." (Fourteenth
Amendment to the Constitution.)
2. Census.
The clause in the Constitution providing for a census
of all the inhabitants every ten years is of great impor-
tance, for on it depend the representation in Congress
and the confidence of the people that they are fairly
represented. Unless there always had been this feeling
that they were fairly represented, it would have been
impossible to preserve the Union. EquaHty in this, as
in other matters, is one of our essentials, and from the
earliest colonial times it was felt that it could be accom-
plished only by mathematical accuracy, or the nearest
approximation to such accuracy as could be attained.
"That the commissioners for each jurisdiction from time to
time, as there shall be occasion, bring a true account and number
of all the males in every plantation, or any way belonging to, or
under their several jurisdictions, of what quality, or condition
soever they be, from sixteen years to three score, being inhab-
itants there." (New England Union of 1643.)
" And the delegates are to bring with them to every congress
an authenticated return of the number of polls in the respective
provinces, which is to be taken triennially for the purposes above
mentioned" [i.e., for apportioning the number of delegates to be
allowed each colony]. (Franklin's Articles of Confederation,
I775-)
18 273
Evolution of the Constitution
"That as soon after the expiration of seven years (subsequent
to the termination of the present war) as may be a census of the
electors and inhabitants in this state be taken under the direction
of the legislature. And, further, that once in every seven years
after the taking of the said first census a just account of the
electors resident in each county shall be taken." (New York
Constitution of 1777.)
" The legislature in the several states shall, from time to time,
cause all the white inhabitants therein to be numbered as nearly
as may be ; the persons appointed to number them shall be sworn
to make the most diligent and accurate inquiry that they can, and
to return to the executive power in the state the true number they
shall so find ; they shall be paid for their trouble and punished
for their neglect, if any there shall be ; the executive authority in
each state, having received such a return, shall without loss of
time send it, or an exact copy of it, to the congress ; such a return
to the congress shall be made before the first day of January next,
and in every seventh year thereafter." (Drayton's Articles of
Confederation, 1778.)
"The actual enumeration shall be made within three years
after the first meeting of the congress of the United States and
within every subsequent term of ten years, in such manner as
they shall by law direct." (The Constitution.)
3. Name.
"Wherefore it is fully agreed and concluded . . . that they
all be and henceforth be called by the name of the United Colo-
nies of New England." (New England Union of 1643.)
' ' The name of this confederacy shall henceforth be the United
Colonies of North America." (Franklin's Articles of Confedera-
tion, 1775.)
"The style of this confederacy shall be 'The United States
of America.' " (Articles of Confederation, 1778.)
"The style of the confederacy shall be the United States of
America." (Drayton's Articles of Confederation, 1778.)
"The style of this government shall be ' The United States of
America.'" (Pinckney's Plan, 1787.)
274
Federalism in Detail
"We, the people of the United States, ... do ordain and
establish this constitution for the United States of America,"
(The Constitution.)
4. General Powers of Congress.
"Which shall bring full power from their several general
courts respectively to hear, examine, weigh, and determine all
affairs of our war or peace, leagues, aids, charges, and numbers
of men for war, division, and spoils, and whatsoever is gotten by
conquest, receiving of more confederates for plantations into
combination with any of the confederates, and all things of like
nature which are the proper concomitants or consequence of such
a confederation, for amity, offence, and defence, not intermed-
dling with the government of any of the jurisdictions, which, by
the third article, is preserved entirely to themselves." (New
England Union of 1643.)
' ' That the president-general, by and with the advice and con-
sent of the general council, hold and exercise all the legislative
rights, powers, and authorities necessary for regulating and ad-
ministering all the general police and affairs of the colonies, in
which Great Britain and the colonies, or any of them, the colo-
nies in general, or more than one colony, are in any manner con-
cerned, as well civil and criminal as commercial." (Galloway's
Plan, 1774.)
" That the national legislature ought to be empowered to enjoy
the legislative rights vested in congress by the confederation,
and, moreover, to legislate in all cases to which the separate
states are incompetent, or in which the harmony of the United
States may be interrupted by the exercise of individual legisla-
tion." (Randolph's Plan, 1787.)
" The legislature of the United States shall have the power to
make all laws for carrying the foregoing powers into execution."
(Pinckney's Plan, 1787.)
' ' The congress shall have power to lay and collect taxes,
duties, imposts, and excises, to pdy the debts and provide for
the common defence and general welfare of the United States.
27s
Evolution of the Constitution
• ' To make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other powers
vested by this constitution in the government of the United States,
or in any department or officer thereof." (The Constitution,)
5. Presiding Officer of Congress.
Besides the quotations given under this section from
the plans of union, many more might be given from the
colonial charters and constitutions and the constitutions
of I 'j'j^^ But, as they are all to the same effect in giving
the lower house of the legislature the power to choose
their presiding officer, it seems hardly necessary to print
them.
" It is further agreed that at each meeting of these eight com-
missioners, whether ordinary or exti^aordinary, they, or six of
them agreeing, as before, may choose their president out of them-
selves, whose office and work shall be to take care and direct for
order and a comely carrying on of all proceedings in the present
meeting. But he shall be invested with no such power or respect
as by which he shall hinder the propounding or progress of any
business, or any way cast the scales, otherwise than in the prece-
dent article is agreed." (New England Union of 1643.)
"That the king's commissioners, for that purpose specially
appointed, shall have the chair and preside in the said congress."
(Penn's Plan of Union, 1696.)
" That the grand council have power to choose their speaker."
(Franklin's Plan of 1754.)
"That the assent of the president be made necessary to all
acts of the council, saving the choice of a speaker." (Hutchin-
son's Plan, 1754.)
' ' That the general council shall have power to choose their
own speaker." (Galloway's Plan, 1774.)
"The United States in congress assembled shall have au-
thority to appoint one of their number to preside : provided, that
no person be allowed to serve in the office of president more than
276
Federalism in Detail
one year in any term of three years." (Articles of Confedera-
tion, 1778.)
"The congress shall have power to appoint one of their num-
ber to preside in it ; nor shall any person officiate as president
of the congress longer than one year in any term of three years."
(Drayton's Articles of Confederation, 1778.)
" The House of Representatives shall choose their speaker and
other officers." (The Constitution.)
6. Restrictions on Congress.
The idea of expressly limiting the legislative powers
of the Union was of late growth, and began with the
Articles of Confederation, which make the consent of
nine States necessary to certain acts of Congress.
But even then it was taken for granted that besides
these express prohibitions all powers not expressly given
Congress were impliedly denied. The Constitution was
framed on this principle, but the fears and caution of
the people compelled the adoption of the ninth and
tenth amendments as additional safeguards, which de-
clare that the rights possessed by Congress shall not be
construed to disparage others possessed by the people,
and that all powers not expressly given are reserved to
the States or the people.
•• The United States, in congress assembled, shall never engage
in a war, nor grant letters of marque and reprisal in time of
peace, nor enter into any treaties or alliances, nor coin money,
nor regulate the value thereof, nor ascertain the sums and ex-
penses necessary for the defence and welfare of the United States,
or any of them, nor emit bills, nor borrow money on the credit
of the United States, nor appropriate money, nor agree upon the
number of vessels of war to be built or purchased, or the number
of land or sea forces to be raised, nor appoint a commander-in-
277
Evolution of the Constitution
chief of the army or navy, unless nine states assent to the same ;
nor shall a question on any other point, except for adjourning
from day to day, be determined, unless by the votes of a majority
of the United States, in congress assembled." (Articles of Con-
federation, 1778.)
' • But the congress shall not declare what shall be treason
against the United States, nor the punishment of it, but by the
voice of each of the United States in congress ; nor shall the con-
gress engage in war, nor enter into or conclude any treaty or
alliance, nor ascertain the military land quota of the states, nor
build, furnish or equip a naval force, nor rate or cause a general
tax to be levied, nor appoint a generalissimo, nor nominate an
admiralissimo, nor emit or borrow money, nor grant letters of
marque and reprisal in time of peace, except by the consent of
eleven votes in the congress ; nor shall the congress vest any of
these powers in the committee of the United States ; nor shall the
congress exercise any power but what is hereby expressly dele-
gated to them." (Drayton's Articles of Confederation, 1778.)
"The executive and a convenient number of the national
judiciary ought to compose a council of revision, with authority
to examine every act of the national legislature before it shall
operate, and the dissent of the said council shall amount to a
rejection unless the act of the national legislature be again passed. ' '
(Randolph's Plan of 1787.)
' ' All laws regulating commerce shall require the assent of two-
thirds of the members present in each house." (Pinckney's Plan
of 1787.)
" The migration or importation of such persons as any of the
states now existing shall think proper to admit shall not be pro-
hibited by the congress prior to the year one thousand eight hun-
dred and eight ; but a tax or duty may be imposed on such
importation not exceeding ten dollars for each person.
" The privilege of the writ of habeas corpus shall not be sus-
pended unless when, in cases of rebellion or invasion, the public
safety may require it.
" No bill of attainder or ex-post-facto law shall be passed.
" No capitation or other direct tax shall be laid unless in pro-
278
Federalism in Detail
portion to the census or enumeration hereinbefore directed to be
taken.
" No tax or duty shall be laid on articles exported from any
state. No preference shall be given by any regulation of com-
merce or revenue to the ports of one state over those of another ;
nor shall vessels bound to or from one state be obliged to enter,
clear, or pay duties in another.
" No title of nobility shall be granted by the United States."
(The Constitution.)
•• The enumeration in the Constitution of certain rights shall
not be construed to deny or disparage others retained by the
people." (Ninth Amendment to the Constitution.)
"The powers not delegated to the United States by the con-
stitution nor prohibited by it to the states are reserved to the
states, respectively, or to the people." (Tenth Amendment to
the Constitution.)
7. Restrictions on the States.
Federalism is impossible unless the uniting States sur-
render some of their rights. To persuade them to such
a surrender was a long and slow process ; yet it was
seen to be a necessity from the beginning, and in the
earliest union — the New England union of 1643 — there
is a slight surrender.
" And for that the justest wars may be of dangerous conse-
quence, especially to the smaller plantations in these united colo-
nies, it is agreed that neither the Massachusetts, Plymouth,
Connecticut, nor New Haven, nor any of the members of any
of them, shall, at any time hereafter, begin, undertake, or engage
themselves or this confederation, or any part thereof, in any war
whatsoever (sudden exigents with the necessary consequences
thereof excepted, which are also to be moderated as much as the
case will permit) without the consent and agreement of the fore-
named eight commissioners, or at least six of them, as in the
sixth Article is provided : And that no charge be required of any
279
Evolution of the Constitution
of the Confederates in case of a defensive war till the said Com-
missioners have met and approved the justice of the war, and
have agreed upon the suip of money to be levied, which sum is
then to be paid by the several Confederates in proportion accord-
ing to the fourth Article. Nor shall any other plantation or juris-
diction in present being, and not already in combination or under
the jurisdiction of any of these Confederates, be received by any
of them ; nor shall any two of the Confederates join in one juris-
diction without consent of the rest, which consent to be interpreted
as is expressed in the sixth Article ensuing." (New England
Union of 1643.)
' ' But no colony shall be at liberty to declare war against any
enemy, or to begin any hostilities, except they have the direction
and allowance of the president and council." (Hutchinson's
Plan, 1754.)
" No colony shall engage in an offensive war with any nation
of Indians without the consent of the congress, or grand coun-
cil above mentioned, who are first to consider the justice and
necessity of such wa.r." (Franklin's Articles of Confederation,
I775-)
"No state, without the consent of the United States, in con-
gress assembled, shall send any embassy to, or receive any em-
bassy from, or enter into any conference, agreement, alliance, or
treaty, with any king, prince, or state ; nor shall any person hold-
ing any office of profit or trust under the United States, or any
of them, accept of any present, emolument, office, or title of any
kind whatever, from any king, prince, or foreign state ; nor shall
the United States, in congress assembled, or any of them, grant
any title of nobility.
• ' No two or more states shall enter into any treaty, confedera-
tion, or alliance whatever, between them, without the consent of
the United States, in congress assembled, specifying accurately
the purposes for which the same is to be entered into, and how
long it shall continue.
' • No state shall lay any imposts or duties which may interfere
with any stipulations in treaties, entered into by the United States,
in congress assembled, with any king, prince, or state, in pursu-
280
Federalism in Detail
ance of any treaties already proposed by congress to the courts
of France and Spain.
" No vessels of war shall be kept up in time of peace, by any
state, except such number only as shall be deemed necessary,
by the United States, in congress assembled, for the defence of
such state or its trade ; nor shall any body of forces be kept up,
by any state, in time of peace, except such number only as, in
the judgment of the United States, in congress assembled, shall
be deemed requisite to garrison the forts necessary for the defence
of such state ; but every state shall always keep up a well-regu-
lated and disciplined militia, sufficiently armed and accoutred,
and shall provide and constantly have ready for use, in public
stores, a due number of field-pieces and tents, and a proper
quantity of arms, ammunition, and camp-equipage.
" No state shall engage in any war without the consent of the
United States, in congress assembled, unless such state be act-
ually invaded by enemies, or shall have received certain advice
of a resolution being formed by some nation of Indians to in-
vade such state, and the danger is so imminent as not to
admit of a delay till the United States, in congress assembled,
can be consulted ; nor shall any state grant commissions to
any ships or vessels of war, nor letters of marque or reprisal,
except it be after a declaration of war by the United States, in
congress assembled, and then only against the kingdom or
state, and the subjects thereof, against which war has been so
declared, and under such regulations as shall be established by
the United States, in congress assembled, unless such state be
infested by pirates, in which case vessels of war may be fitted out
for that occasion, and kept so long as the danger shall continue,
or until the United States, in congress assembled, shall determine
otherwise.
" Every state shall abide by the determinadons of the United
States, in congress assembled, on all questions which, by this
confederation, are submitted to them. And the articles of this
confederation shall be inviolably observed by every state, and
the Union shall be perpetual." (Articles of Confederation, 1778.)
"Any state neglecting to have a representation in congress shall
281
Evolution of the Constitution
nevertheless be bound by the act of congress as if its representa-
tion was present.
' ' Provided that such restrictions [by one state on citizens of
another state] shall not extend to defeat the articles of this con-
federation or any part thereof. Provided, also, that no duty, im-
position, or restriction shall be laid by any state on the property of
the United States, or of the government, in either of them, except
in cases of embargo.
" No state shall lay or allow to continue any prohibition, impost,
or duty which may interfere with any treaty which shall be made
by the congress with any foreign power ; no state shall engage in
any war without the consent of the congress unless such state be
actually invaded by an enemy or shall have received certain in-
telligence of such hostile design formed by some nation of Indians
and the danger is so imminent as not to admit of a delay ; no
state shall grant letters of marque and reprisal but after a decla-
ration of war by the congress, and then only against the power
against whom the war has been so declared, except such state be
infested by piracies, in which case vessels of war may be fitted
out by that state for the occasion only ; no state shall enter into
any conference, agreement, treaty, or alliance with any king,
prince, or foreign states ; nor shall any person holding any office
under the United States, or under an}» of them, accept of any
present, emolument, office, or title from any king or foreign state
without being thereby absolutely rendered forever incapable of
any public trust under the United States, or any of them ; nor
shall any of these states grant any title of nobility.
' ' No state shall exercise any power hereby delegated to the
congress." (Drayton's Articles of Confederation, 1778.)
" The national legislature ought to be empowered to negative
all laws passed by the several states contravening, in the opinion
of the national legislature, the articles of union or any treaty
subsisting under the authority of the union, and to call forth the
force of the union against any member of the union faihng to fulfil
its duty under the articles thereof.
"The executive and a convenient number of the national
judiciary ought to compose a council of revision, with authority
282
Federalism in Detail
to examine every act of a particular legislature before a negative
thereon shall be final, and the dissent of the said council shall
amount to a rejection unless the act of the particular legislature
be again negatived by of the number of each branch."
(Randolph's Plan, 1787.)
" No state shall grant letters of marque and reprisal, or enter
into treaty, or alliance, or confederation ; nor grant any title of
nobility ; nor, without the consent of the legislature of the United
States, lay any impost on imports ; nor keep troops or ships of
war in time of peace ; nor enter into compacts with other states or
foreign powers ; nor emit bills of credit ; nor make anything but
gold, silver, or copper a tender in payment of debts ; nor engage
in war, except for self-defence when actually invaded or the dan-
ger of invasion be so great as not to admit of a delay until the
government of the United States can be informed thereof. And,
to render these prohibitions effectual, the legislature of the United
States shall have the power to revise the laws of the several states
that may be supposed to infringe the powers exclusively delegated
by this constitution to congress, and to negative and annul such
as do." (Pinckney's Plan, 1787.)
"No state shall enter into any treaty, alliance, or confedera-
tion ; grant letters of marque and reprisal, coin money, emit bills
of credit, make anything hut gold and silver coin a tender in pay-
ment of debts, pass any bill of attainder, ex-post-facto law, or law
impairing the obligation of contracts, or grant any title of nobility.
" No state shall, without the consent of the congress, lay any
imposts or duties on imports or exports except what may be abso-
lutely necessary for executing its inspection laws, and the net
produce of all duties and imposts laid by any state on imports or
exports shall be for the use of the treasury of the United States,
and all such laws shall be subject to the revision and control of
the congress. No state shall, without the consent of congress,
lay any duty of tonnage, keep troops or ships of war in time of
peace, enter into any agreement or compact with another state or
with a foreign power, or engage in war, unless actually invaded,
or in such imminent danger as will not admit of delay." (The
Constitution.)
283
Evolution of the Constitution
8. State Sovereignty.
While it is essential to federalism that the uniting
States should surrender some of their rights, it is equally
essential that they should preserve their remaining rights.
Only in this way can the ideal of federalism be attained,
— an indestructible union of indestructible States. As
we have shown in the preceding section, the first at-
tempt at union — the New England union of 1643 — con-
tained a slight surrender of State rights. It also con-
tained a guarantee that the remaining State rights should
be inviolably preserved. These two counterpoising es-
sentials of our system appeared at the very beginning,
at the same time, and in the same document Ameri-
can federalism, at its first appearance in the year 1643,
contained that foundation principle without which it
cannot be preserved.
" It is further agreed that the Plantations which at present are,
cr hereafter shall be, settled within the limits of the Massachu-
setts, shall be forever under the Massachusetts, and shall have
peculiar jurisdiction among themselves in all cases as an entire
body; and that Plymouth, Connecticut, and New Haven shall
each of them have like peculiar jurisdiction and government
within their limits, and in reference to the Plantations which
already are settled, or shall hereafter be erected, or shall settle
within their limits respectively : provided, that no other jurisdic-
tion shall hereafter be taken in as a distinct head or member of
this confederation ; nor shall any other Plantation or jurisdiction
in present being, and not already in combination or under the
jurisdiction of any of these Confederates, be received by any of
them ; nor shall any two of the Confederates join in one jurisdic-
tion without consent of the rest, which consent to be interpreted
as is expressed in the sixth article ensuing." (New England
Union of 1643.)
284
Federalism in Detail
"That this general council do not meddle with or alter the
manner of government in any province, but that the said general
council may send advice to the assembly of any province touch-
ing any matter which they conceive may be to the advantage of
the province." (Lord Stair's Plan, 1721.)
" The quota or proportion, as above allotted and charged on
each colony, may, nevertheless, be levied and raised by its own
assembly in such manner as they shall judge most easy and con-
venient and the circumstances of their affairs will permit."
(Daniel Coxe's Plan, 1722.)
" Each colony may retain its present constitution except in the
particulars wherein a change may be directed by the said act as
hereafter follows. ' '
' ' But they shall not impress men in any colony without the
consent of its legislature." (Franklin's Plan of 1754.)
• ' The president and council shall not have power to impress
men in any colony without the consent of its legislature."
(Hutchinson's Plan, 1754.)
• ' That a British and American legislature, for regulating the
administration of the general affairs of America, be proposed and
estabHshed in America, including all the said colonies, within and
under which government each colony shall retain its present con-
stitution and powers of regulating and governing its own internal
police in all cases whatever." (Galloway's Plan, 1774.)
" That each colony shall enjoy and retain as much as it may
think fit of its own present laws, customs, rights, privileges, and
peculiar jurisdictions within its own limits ; and may amend its
own constitution, as shall seem best to its own assembly or con-
vention." (Franklin's Articles of Confederation, 1775.)
" Elach state retains its sovereignty, freedom, and indepen-
dence, and every power, jurisdiction, and right, which is not by
this confederation expressly delegated to the United States in
congress assembled.
• ' When land forces are raised by any state for the common
defence, all officers of or under the rank of colonel shall be ap-
pointed by the legislature of each state respectively by whom
such forces shall be raised, or in such manner as such state shall
285
Evolution of the Constitution
direct, and all vacancies shall be filled up by the state which first
made the appointment.
' • The taxes for paying that proportion [of the common fund
for the general welfare] shall be laid and levied by the authority
and direction of the legislatures of the several states within the
time agreed upon by the United States.
"Provided that no treaty of commerce shall be made [by
the United States in congress assembled] whereby the legislative
power of the respective states shall be restrained from imposing
such imposts and duties on foreigners as their own people are
subjected to, or from prohibiting the exportation or importation
of any species of goods or commodities.
' ' No state shall be deprived of territory for the benefit of the
United States.
"The United States, in congress assembled, shall also have
the sole and exclusive right and power of regulating the trade and
managing all affairs with the Indians not members of any of the
states ; provided that the legislative right of any state, within
its own limits, be not infringed or violated." (Articles of Con-
federation, 1778.)
"But it is declared the several states do possess and enjoy
all those natural rights and powers of sovereignty not by this act
delegated. And it is also declared that whenever the congress
shall cease to observe these articles of confederation the several
states shall be at liberty to declare themselves absolved from all
obedience to that government." (Drayton's Articles of Confed-
eration, 1778.)
"That the territory of each state ought to be guaranteed by
the United States to each state." (Randolph's Plan, 1787.)
"No tax or duty shall be laid on articles exported from any
state. No preference shall be given by any regulation of com-
merce or revenue to the ports of one state over those of another ;
nor shall vessels bound to or from one state be obliged to enter,
clear, or pay duties in another.
" No new state shall be formed or erected within the jurisdic-
tion of any other state; nor any state be formed by the junction
of two or more states, or parts of states, without the consent of
286
Federalism in Detail
the legislatures of the states concerned as well as of the con-
gress." (The Constitution.)
' • The powers not delegated to the United States by the con-
stitution nor prohibited by it to the states are reserved to the
states respectively, or to the people." (Tenth Amendment to
the Constitution.)
9. Raising Money and Taxation.
" It is by these confederates agreed that the charge of all just
wars, whether offensive or defensive, upon what part or member
of this confederation soever they fall, shall, both in men and pro-
visions, and all other disbursements, be borne by all the parts
of this confederation, in different proportions according to their
different ability, in manner following, namely, that the commis-
sioners for each jurisdiction from time to time, as there shall be
occasion, bring a true account and number of all the males in
every plantation, or any way belonging to or under their several
jurisdictions, of what quality or condition soever they be, from
sixteen years old to threescore, being inhabitants there. And
that according to the different numbers which from time to time
shall be found in each jurisdiction, upon a true and just account,
the service of men and all charges of the war be borne by the
poll ; each jurisdiction or plantation being left to their own just
course and custom of rating themselves and people according to
their different estates, with due respects to their qualities and
exemptions among themselves, though the confederation take no
notice of any such privilege ; and that according to their different
charge of each jurisdiction and plantation, the whole advantage
of the war (if it please God to bless their endeavors), whether it be
in lands, goods or persons, shall be proportionably divided among
the said confederates." (New England Union of 1643.)
"That the general council, with the captain-general, have
power to allot the portion of men and money (or money and men)
which shall be the appointment of eacJi province, to be fixed in
gross, and the assembly of the province to direct by a law the
ways of raising it." (Lord Stair's Plan of 1721.)
2S7
Evolution of the Constitution
"That for these purposes they have power to make laws and
lay and levy such general duties, imposts, or taxes, as to them
shall appear most equal and just, considering the ability and
other circumstances of the inhabitants in the several colonies, and
such as may be collected with the least inconvenience to the peo-
ple, rather discouraging luxury than loading industry with unneces-
sary burdens." (Franklin's Plan of 1754.)
"And in order to raise moneys sufficient for these pur-
poses :
' ' That the said president and council be empowered to lay
general duty on wines and spirituous liquors or other luxurious
consumptions as shall appear to them just and equal on the
several colonies, each colony to pay in proportion to their mem-
bers ; and if it shall appear that the sum raised by any colony fall
short of such proportion and the deficiency shall not forthwith be
paid by such colony, then and as oft as it shall so happen the
said president and council shall have power to lay additional duty
on such colony until the deficiency be made good ; and if the sum
raised from any colony shall exceed its proportion, the surplus
shall remain or be paid into the general treasury of such colony.
And the accounts of the deposition of all moneys raised shall be
annually settled, that the members of the council may make
report of the same to the respective assemblies.
' ' That the president and council shall appoint officers for col-
lecting all such duties as shall be agreed on, and all laws and
orders for enforcing the payment thereof in any and every colony,
and also all laws and orders for restraining supplies to, and com-
munication with, his Majesty's enemies, whether by flags of
truce or in any other manner, shall be as fully and effectively
observed and executed as if they had been the laws of that par-
ticular colony where any offence shall be committed, and all
offences against such laws and orders shall be tried and deter-
mined accordingly." (Hutchinson's Plan, 1754.)
"All charges of wars, and all other general expenses to be
incurred for the common^welfare, shall be defrayed out of a com-
mon treasury, which is to be supplied by each colony in propor-
tion to its number of male polls between sixteen and sixty years
288
Federalism in Detail
of age. The taxes for paying that proportion are to be laid and
levied by the laws of each colony." (Franklin's Articles of Con-
federation, 1775.)
"All charges of war, and all other expenses that shall be
incurred for the common defence or general welfare and allowed
by the United States, in congress assembled, shall be defrayed
out of a common treasury, which shall be supplied by the several
states, in proportion to the value of all land within each state,
granted to, or surveyed for, any person, as such land and the
buildings and improvements thereon shall be estimated, accord-
ing to such mode as the United States, in congress assembled,
shall from time to time direct and appoint. The taxes for paying
that proportion shall be laid and levied by the authority and direc-
tion of the legislatures of the several states, within the time agreed
upon by the United States, in congress assembled. ' ' (Articles of
Confederation, 1778.)
' ' The congress shall have the sole power of rating and causing
taxes to be levied throughout the United States for the service of
the confederacy." (Drayton's Articles of Confederation, 1778.)
' ' The legislature of the United States shall have power to lay
and collect taxes, duties, imposts, and excises." (Pinckney's
Plan, 1787.)
" The proportion of direct taxation shall be regulated by the
whole number of inhabitants of every description, which number
shall, within years after the first meeting of the legislature
and within the term of every year after, be taken in the
manner to be prescribed by the legislature.
' ' No tax shall be laid on articles exported from the states ; nor
capitation tax, but in proportion to the census before directed."
(Pinckney's Plan, 1787.)
"The congress shall have power to lay and collect taxes,
duties, imposts, and excises, to pay the debts and provide for the
common defence and general welfare of the United States ; but all
duties, imposts, and excises shall be uniform throughout the
United States. No capitation or other direct tax shall be laid
unless in proportibn to the census or enumeration hereinbefore
directed to be taken." (The Constitution.)
19 289
Evolution of the Constitution
lo. Intercourse between the States.
"It is also agreed that the commissioners for this confedera-
tion hereafter at their meetings, whether ordinary or extraordi-
nary, as they may have commission or opportunity, do endeavor
to frame and establish agreements and orders in general cases of
a civil nature wherein all the plantations are interested for pre-
serving peace among themselves, and preventing as much as
may be all occasions of war or difference with others, as about
the free and speedy passage of justice in every jurisdiction to all
the confederates equally as their own, receiving those that re-
move from one plantation to another without due certificates ;
how all the jurisdictions may carry it towards the Indians, that
they neither grow insolent nor be injured without due satisfaction,
lest war break in upon the confederates through such miscarriage.
It is also agreed that if any servant run away from his master into
any other of these confederated jurisdictions, that, in such case,
upon the certificate of one magistrate in the jurisdiction out of
which the said servant fled, or upon other due proof, the said
servant shall be delivered either to his master or any other that
pursues and brings such certificate or proof. And that upon the
escape of any prisoner whatsoever or fugitive for any criminal
cause, whether breaking prison or getting from the officer or
otherwise escaping, upon the certificate of two magistrates of the
jurisdiction out of which the escape is made that he was a pris-
oner or such an offender at the time of the escape, the magis-
trates, or some of them of that jurisdiction where for the present
the said prisoner or fugitive abideth, shall forthwith grant such a
warrant as the case will bear for the apprehending of any such
person, and the delivery of him into the hands of the officer or
other person that pursues him. And if there be help required for
the safe returning of such offender, then it shall be granted to
him that craves the same, he paying the charges thereof. ' ' (New
England Union of 1643.)
"That their business shall be to hear and adjust all matters
of complaint or differences between province and province, — as,
1st, where persons quit their own province and go to another that
290
Federalism in Detail
they may avoid their just debts, though they be able to pay them ;
2d, where offenders fly justice or justice cannot well be had upon
such offenders in the provinces that entertain them." (Penn's
Plan of Union, 1696.)
" The better to secure and perpetuate mutual friendship and
intercourse among the people of the different states in this union,
the free inhabitants of each of these states, paupers, vagabonds,
and fugitives from justice excepted, shall be entitled to all privi-
leges and immunities of free citizens in the several states ; and
the people of each state shall have free ingress and regress to
and from any other state, and shall enjoy therein all the privi-
leges of trade and commerce, subject to the same duties, impo-
sitions, and restrictions as the inhabitants thereof respectively ;
provided that such restrictions shall not extend so far as to pre-
vent the removal of property imported into any state to any
other state, of which the owner is an inhabitant ; provided, also,
that no imposition, duties, or restriction shall be laid by any state
on the property of the United States, or either of them.
" If any person guilty of, or charged with, treason, felony, or
other high misdemeanor in any state shall flee from justice and
be found in any of the United States, he shall, upon demand of
the governor or executive power of the state from which he fled,
be delivered up, and removed to the state having jurisdiction of
his offence.
"Full faith and credit shall be given, in each of these states,
to the records, acts, and judicial proceedings of the courts and
magistrates of every other state." (Articles of Confederation,
1778.)
"There shall be a mutual friendship and intercourse among
the people of the several states in this union ; the free white in-
habitants of each of these states (those who refuse to take up
arms in defence of the confederacy, paupers, vagabonds, and
fiigitives from justice excepted) shall be entitled to all privileges
and immunities of free citizens in the several states, according to
the laws of such state respectively, for the government of their
own free white inhabitants, having uninterrupted ingress and re-
gress, together with their property, to and from any other of the
291
Evolution of the Constitution
United States, subject, nevertheless, to the duties, impositions,
and restrictions as the inhabitants thereof respectively.
"If any person charged with, or guilty of, treason, felony, or
other high misdemeanors, in any of the respective states, shall
flee from justice, and be found in any of the states, upon the de-
mand of the executive power in the state from which he fled, he
shall be delivered up and removed to the state having jurisdic-
tion of the offence, that state defraying the expense of the re-
moval. And full faith and credit shall be given throughout the
United States to the acts, records, and judicial proceedings of the
courts and magistrates in each." (Drayton's Articles of Con-
federation, 1778.)
" The citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states. Any person, charged
with crimes in any state, fleeing from justice to another, shall, on
demand of the executive of the state from which he fled, be delivered
up and removed to the state having jurisdiction of the offence.
" Full faith shall be given, in each state, to the acts of the
legislature, and to the records and judicial proceedings of the
courts and magistrates of every state." (Pinckney's Plan, 1787.)
" Full faith and credit shall be given in each state to the pub-
lic acts, records, and judicial proceedings of every other state.
And the congress may, by general laws, prescribe the manner
in which such acts, records, and proceedings shall be proved,
and the effect thereof.
* ' The citizens of each state shall be entitled to all privileges
and immunities of citizens in the several states.
"A person charged in any state with treason, felony, or other
crime, who shall flee from justice, and be found in another state,
shall, on demand of the executive authority of the state from
which he fled, be delivered up, to be removed to the state having
jurisdiction of the crime.
"No person held to service or labor in one state, under the
laws thereof, escaping into another, shall, in consequence of any
law or regulation therein, be discharged from such service or
labor, but shall be delivered up on claim of the party to whom
such service or labor may be due." (The Constitution.)
292
Federalism in Detail
II. Regulation of Commerce.
"3rd, to prevent injuries in point of commerce." (Penn's
Plan of Union, 1696.)
• • That the president-general, with the advice of the gjrand
council, make such laws as they judge necessary for regulating
all Indian trade." (Franklin's Plan of 1754.)
"The president, by the advice of the council, shall have the
sole power of restraining and regulating all Indian trade by laws
and orders, with penalties annexed not extending to life and limb ;
all offences against such laws or orders to be tried and deter-
mined within the government where the offence shall be com-
mitted, according to the course of judicial proceeding in such
government, in like manner as if such offence had been com-
mitted against the laws of such colony, and any offence that may
be committed in any parts that shall not be within the certain
bounds of any colony shall and may be tried and determined in
the colony where the offender shall be taken." (Hutchinson's
Plan, 1754.)
"The congress shall also make such general ordinances as
may relate to our general commerce." (Franklin's Articles of
Confederation, 1775.)
"The United States, in congress assembled, shall also have
the sole and exclusive right and power of regulating the trade
and managing all affairs with the Indians not members of any
of the states ; provided that the legislative right of any state,
within its own limits, be not infringed or violated." (Articles of
Confederation, 1778.)
"The congress shall have the sole power of regulating the
affairs and trade of the Indians not members of any state."
(Drayton's Articles of Confederation, 1778.)
" The legislature of the United States shall have the power to
regulate commerce with all nations and among the several states."
(Pinckney's Plan, 1787.)
"The congress shall have power to regulate commerce with
foreign nations and among the several states and with the Indian
tribes." (The Constitution.)
293
Evolution of the Constitution
12. Sending and Receiving Ambassadors.
"That the power and duty of congress shall extend to the
sending and receiving ambassadors." (Franklin's Articles of
Confederation, 1775.)
"The United States, in congress assembled, shall have the
sole and exclusive right and povi^er of sending and receiving am-
bassadors." (Articles of Confederation, 1778.)
" The congress shall have sole power of sending ambassadors
to, and receiving therefrom, foreign princes and states." (Dray-
ton's Articles of Confederation, 1778.)
' ' The senate shall have the sole and exclusive power to ap-
point ambassadors and other ministers to foreign nations.
" He [the President] shall receive public ministers from foreign
nations, and may correspond with the executives of the different
states." (Pinckney's Plan, 1787.)
" He [the President] shall nominate, and, by and with the
advice of the senate, shall appoint ambassadors and other public
ministers.
" He shall receive ambassadors and other public ministers."
(The Constitution.)
13. Captures.
"The United States, in congress assembled, shall have the
sole and exclusive right and power of establishing rules for de-
ciding in all cases what captures on land or water shall be legal,
and in what manner prizes taken by land or naval forces in the
service of the United States shall be divided or appropriated."
(Articles of Confederation, 1778.)
"The congress shall have the sole power of declaring what
captures on land and on water shall be legal, and in what manner
such captures, by the land and naval forces in the service of the
United States, shall be divided and appropriated." (Drayton's
Articles of Confederation, 1778.)
"The legislature of the United States shall have the power to
make rules concerning captures from an enemy." (Pinckney's
Plan, 1787.)
294
Federalism in Detail
"The congress shall have power to make rules concerning
captures on land and water." (The Constitution.)
14. The Judiciary.
The New England union of 1643 contemplated
nothing more than a legislative department, which was
to exercise all the powers of the Union. Penn's plan
of 1696 added an executive, and subsequent plans
down to the time of the Revolution were usually based
on those two departments, which, however, were not
always entirely distinct from each other. A judicial
department was never mentioned, because the plans and
the situation were not sufficiently complex to require
the function of regularly organized government. It was
not until the time of the Articles of Confederation of
1778 that the judicial power was cautiously introduced,
and confined at first to piracies and felonies on the
high seas and cases of capture.
" The United States, in congress assembled, shall have the
sole and exclusive right and power of appointing courts for the
trial of piracies and felonies committed on the high seas ; [and]
courts for receiving and determining finally appeals in all cases
of captures." (Articles of Confederation, 1778.)
"The congress shall have the sole power of appointing courts
in the several United States for trial of piracies committed on the
high seas, and for deciding finally appeals in all cases of capture
arising in such states respectively." (Drayton's Articles of Con-
federation, 1778.)
" That a national judiciary be established ; to consist of one or
more supreme tribunals and of inferior tribunals ; to be chosen
by the national legislature ; to hold their offices during good be-
havior, and to receive punctually, at stated times, fixed compen-
sation for their services, in which no increase or diminution shall
29s
Evolution of the Constitution
be made so as to affect the persons actually in office at the time
of such increase or diminution. That the jurisdiction of the
inferior tribunals shall be to hear and determine, in the first
instance, and of the supreme tribunal to hear and determine, in
the dernier ressort, all piracies and felonies on the high seas ; cap-
tures from an enemy ; cases in which foreigners, or citizens of
other states, applying to such jurisdictions, may be interested ; or
which respect the collection of the national revenue, impeach-
ments of any national officers, and questions which may involve
the national peace and harmony." (Randolph's Plan, 1787.)
" The legislature of the United States shall have the power to
constitute tribunals inferior to the supreme court.
" The legislature of the United States shall have the power,
and it shall be their duty, to establish such courts of law, equity,
and admiralty as shall be necessary.
" The judges of the courts shall hold their offices during good
behavior and receive a compensation which shall not be increased
or diminished during their continuance in office. One of these
courts shall be termed the supreme court, whose jurisdiction shall
extend to all cases arising under the laws of the United States, or
affecting ambassadors, other public ministers, and consuls ; to the
trial or impeachment of officers of the United States ; to all cases
of admiralty and maritime jurisdiction. In cases of impeachment
affecting ambassadors and other public ministers this jurisdiction
shall be original and in all other cases appellate." (Pinckney's
Plan, 1787.)
• ' The congress shall have power to constitute tribunals inferior
to the supreme court.
" The judicial power of the United States shall be vested in
one supreme court and in such inferior courts as the congress
may from time to time ordain and establish. The judges, both
of the supreme and inferior courts, shall hold their offices during
good behavior, and shall, at stated times, receive for their ser-
vices a compensation which shall not be diminished during their
continuance in office.
" The judicial power shall extend to all cases in law and equity
arising under this constitution, the laws of the United States and
296
Federalism in Detail
treaties made, or which shall be made, under their authority ;
to all cases affecting ambassadors, other public ministers, and
consuls ; to all cases of admiralty and maritime jurisdiction ; to
controversies to which the United States shall be a party ; to
controversies between two or more states ; between a state and
citizens of another state ; between citizens of different states ;
between citizens of the same state claiming lands under grants of
different states ; and between a state, or the citizens thereof, and
foreign states, citizens, or subjects.
" In all cases affecting ambassadors, other public ministers,
and consuls, and those in which a state shall be a party, the
supreme court shall have original jurisdiction. In all the other
cases before mentioned the supreme court shall have appellate
jurisdiction, both as to law and fact, with such exceptions and
under such regulations as the congress shall make." (The Con-
stitution.)
" The judicial power of the United States shall not be construed
to extend to any suit in law or equity commenced or prosecuted
against one of the United States by citizens of another state, or by
citizens or subjects of any foreign state." (Eleventh Amendment
to the Constitution.)
15. Power to Borrow Money.
"The United States, in congress assembled, shall have au-
thority to borrow money or emit bills on the credit of the United
States, transmitting every half year to the respective states an
account of the sums of money so borrowed or emitted." (Arti-
cles of Confederation, 1778.)
" The congress shall have the sole power of emitting and bor-
rowing money upon the credit of the United States, from time to
time, not exceeding the sum ascertained as necessary to be raised
for the service of the confederacy, transmitting to the several
states, half yearly, an account of the sums of money so emitted
and borrowed, applying the said sums of money ascertained to be
raised, and allowed to be emitted and borrowed, for defraying the
public expense." (Drayton's Articles of Confederation, 1778.)
297
Evolution of the Constitution
"The legislature of the United States shall have the power to
borrow money and emit bills of credit." (Pinckney's Plan,
1787.)
"The congress shall have power to borrow money on the
credit of the United States." (The Constitution.)
16. Regulation of the Value of Money.
"And, lastly, whether considering the trouble and confusion
attending the endless diversity of money, it would not be best,
by an act of the legislature at home, to establish one medium to
obtain in the colonies." (Dr. Johnson's Plan of 1660.)
' ' The congress shall also make such general ordinances as
relate to our general currency." (Franklin's Articles of Confed-
eration, 1775.)
' ' The United States, in congress assembled, shall also have
the sole and exclusive right and power of regulating the alloy and
value of coin struck by their own authority, or by that of the re-
spective states." (Articles of Confederation, 1778.)
"The congress shall have the sole power of regulating the
alloy and value of coin struck by their authority." (Drayton's
Articles of Confederation, 1778.)
"The legislature of the United States shall have the power to
coin money and regulate the value of all coins, [and] to declare
the law and punishment of counterfeiting coin." (Pinckney's
Plan of 1787.)
' ' The congress shall have power to coin money, regulate the
value thereof and of foreign coin, [and] to provide the punish-
ment of counterfeiting the securities and current coin of the
United States." (The Constitution.)
17. Standard of Weights and Measures.
"The United States, in congress assembled, shall also have
the sole and exclusive right and power of fixing the standard of
weights and measures." (Articles of Confederation, 1778.)
" The legislature of the United States shall have the power to
298
Federalism in Detail
fix the standard of weights and measures." (Pinckney's Plan,
1787.)
" The congress shall have power to fix the standard of weights
and measures." (The Constitution.)
18. Army.
An army is an essential part of a federal government
if the federalism is to endure. In fact, the earliest
forms of federalism had in view an army as their prin-
cipal object The New England union of 1643 was
established almost for the sole purpose of raising an
army to protect the provinces that were associated in
the union.
At the same time there is the danger that the army
may become so large as to be a menace to liberty, or
that it may be used to coerce some one or more of the
States for the benefit of the others. To guard against
this, the early plans of union usually left much of the
control to the individual provinces, each of which was
to furnish its quota of men and no more, appoint the
officers, and furnish arms and equipments, while ammu-
nition, food, and general expenses were to be provided
by the union. As federalism developed, and less and
less was left to the individual States, the control of the
army was placed in the Congress, or whatever body most
fully represented the people, who have always proved
to be very jealous of standing armies, and, in this re-
spect, most careful guardians of their liberty,
" It is further agreed that if any one of these jurisdictions, or
any plantations under it, or in any combination with them be
invaded by any enemy whomsoever, upon notice and request of
any three magistrates of that jurisdiction so invaded, the rest of
299
Evolution of the Constitution
the confederates, without any further meeting or expostulation,
shall forthwith send aid to the confederate in danger, but in differ-
ent proportions, — namely, the Massachusetts an hundred men
sufficiently armed and provided for such a service and journey,
and each of the rest forty-five so armed and provided, or any less
number, if less be required, according to this proportion. But
if such confederate in danger may be supplied by their next con-
federate not exceeding the number hereby agreed, they may
crave help there, and seek no further for the present. The
charge to be borne as in this article is expressed, and, at the
return, to be victualled and supphed with powder and shot for
their journey (if there be need) by that jurisdiction which em-
ployed or sent for them ; but none of these jurisdictions to exceed
these numbers till by a meeting of the commissioners for this
confederation a greater aid appear necessary. And this propor-
tion to continue till, upon knowledge of greater numbers in each
jurisdiction which shall be brought to the next meeting, some
other proportion be ordered. But in any such case of sending
men for present aid, whether before or after such order or altera-
tion, it is agreed that at the meeting of the commissioners for
this confederation the cause of such war or invasion be duly con-
sidered, and, if it appear that the fault lay in the parties so
invaded, that then that jurisdiction or plantation make just satis-
faction, both to the invaders whom they have injured, and bear
all the charges of the war themselves without requiring any
allowance from the rest of the confederates towards the same.
And further, that if any jurisdiction see any danger of any inva-
sion approaching, and there be time for a meeting, that in such
case three magistrates of that jurisdiction may summon a meeting
at such convenient place as themselves shall think meet, to con-
sider and provide against the threatened danger, provided when
they are met they may remove to what place they please, only
whilst any of these four confederates have but three magistrates
in their jurisdiction, their request or summons from any two of
them shall be accounted of equal force with the three mentioned
in both the clauses of this article till there be an increase of magis-
trates there." (New England Union, 1643.)
Federalism in Detail
[The Congress] " to consider of ways and means to support
the union and safety of these provinces against the public ene-
mies." (Penn's Plan of Union, 1696.)
"That there be a reasonable sum raised and paid every year
from each province for erecting forts, where proper, and repairing
the old ; and for providing the said forts with arms and ammuni-
tion, etc., the better to enable the provinces to extend their terri-
tories backward.
' ' That the standing military forces that shall be thought need-
ful for the defence of all the provinces be on any vacancies filled
up by the said captain-general, to be confirmed by his Majesty's
commission.
' ' That the said captain-general have power to remove any
officer in the militia of any province when under his command
upon service, but to fill up the vacancies with persons only of the
province to which the said militia belonged.
' ' That the captain-general have power to order and march the
militia of any province to the defence of another (this article to be
settled under reasonable rules, allowances, and restrictions)."
(Lord Stair's Plan, 1 721.)
"That they [the grand council] raise and pay soldiers and
build forts for the defence of any of the colonies." (Frankhn's
Plan of 1754.)
• ' That one company, consisting of one hundred men complete,
exclusive of officers, shall be raised by every province, and a
regiment formed of the thirteen companies to be called the union
regiment, to be commanded by one colonel, heutenant-colonel,
and major, to be appointed by the king.
"That this Uttle standing army shall assist in making roads,
building forts, or any other necessary work." (Peters' s Plan,
1754.)
• ' That the president and council shall have power to raise and
pay soldiers and build forts for the defence of any of the colo-
nies, and for removing all encroachments upon his Majesty's
territories, and for the annoyance of his Majesty's enemies."
(Hutchinson's Plan, 1754.)
"The congress shall also make such general ordinances as
30'
Evolution of the Constitution
may relate to the establishment of posts and the regulation of our
common forces." (Franklin's Articles of Confederation, 1775.)
' ' The United States, in congress assembled, shall also have
the sole and exclusive right and power of making rules for the
government and regulation of the said land and naval forces, and
directing their operations.
"The United States, in congress assembled, shall have au-
thority to agree upon the number of land forces, and to make
requisitions from each state for its quota in proportion to the
number of white inhabitants in such state, which requisition shall
be binding ; and thereupon the legislature of each state shall ap-
point the regimental officers, raise the men, and clothe, arm, and
equip them, in a soldier-like manner, at the expense of the United
States ; and the officers and men so clothed, armed, and equipped
shall march to the place appointed, and within the time agreed
on by the United States in congress assembled. But if the United
States, in congress assembled, shall, on consideration of circum-
stances, judge proper that any state should not raise men, or
should raise a smaller number than its quota, and that any other
state should raise a greater number of men than the quota thereof,
such extra number shall be raised, officered, clothed, armed, and
equipped in the same manner as the quota of such state, unless
the legislature of such state shall judge that such extra number
cannot be safely spared out of the same ; in which case they shall
raise, officer, clothe, arm, and equip as many of such extra num-
ber as they judge can be safely spared ; and the officers and men
so clothed, armed, and equipped shall march to the place ap-
pointed, and within the time agreed on by the United States in
congress assembled." (Articles of Confederation, 1778.)
"The congress shall have the sole power of ascertaining the
military land quota of each state in proportion to the number of
white inhabitants therein respectively ; making rules for the gov-
ernment of the said military quotas, — directing, ordering, and
commanding the said military quotas, generalissimo, major-gen-
erals, principal staff officer, subordinate officers, war office, in all
their operations and proceedings ; collecting military stores and
provisions, and issuing them for the service of the United States.
302
Federalism in Detail
" The military land quota of each of the United States shall
be in proportion- to the number of white inhabitants in each. The
several states shall, in due time, embody the several military
quotas required by the congress, and shall raise, clothe, arm, and
maintain them at the general expense rated by the congress.
The several states shall appoint all the regimental and deputy
staff officers incidental to their quotas ; and into as many brigades
as the congress shall brigade their respective quotas, so many
brigadier-generals shall such respective state nominate, — the
whole to be commissioned by the congress. All vacancies in a
quota shall be supplied by its state. The executive power in
each state, except that in which the congress be sitting, shall,
under the authority and control of the congress, direct the land
forces, ships, and vessels of war, and all officers incidental
thereto, in the service of the United States within such state.
The proportionate pecuniary quotas of the several states shall
be regulated in proportion to the number of inhabitants in
each state respectively. Whenever such pecuniary quotas for
the service of the United States shall be required by congress
they shall state the capitation rate. Each state shall then ap-
point persons to number its whole inhabitants, according to the
mode stated, to ascertain the number of white inhabitants in each
state ; such persons being also caused to specify the number of
white, mustizo, mulatto, and negro inhabitants respectively.
Such a numeration being duly returned, the legislature in each
state shall levy the sum of money to arise therefrom in such mode
as they shall deem expedient ; and a true copy of the said return
shall, without loss of time, be sent to congress. The several
states shall duly pay their pecuniary quotas into the treasury office
of America by the time mentioned by the congress for such pay-
ment, unless to the contrary directed for the good of the public
service ; in which case, such state so directed shall, within twelve
months, duly account with the said treasury office for the pecu-
niary quota, or part thereof so directed to be retained." (Dray-
ton's Articles of Confederation, 1778.)
" The legislature of the United States shall have power to raise
armies ; to pass laws for arming, organizing, and disciplining the
303
Evolution of the Constitution
militia of the United States ; to provide such arsenals and erect
such fortifications as may be necessary for the United States, and
to exercise exclusive jurisdiction therein ; to establish military
roads." (Pinckney's Plan, 1787.)
" The congress shall have power to raise and support armies,
but no appropriation of money to that use shall be for a longer
term than two years.
' ' To make rules for the government and regulation of the land
and naval forces.
"To provide for calling forth the militia to execute the laws
of the union, suppress insurrections, and repel invasions.
"To provide for organizing, arming, and disciplining the
militia, and for governing such part of them as may be employed
in the service of the United States, reserving to the states re-
spectively the appointment of the officers and the authority of
training the militia according to the discipline prescribed by con-
gress.
"And to exercise like authority [/.<?., exclusive authority] over
all places purchased by the consent of the legislature of the state
in which the same shall be for the erection of forts, magazines,
arsenals, dock-yards, and other needful buildings." (The Con-
stitution.)
19. Navy.
"That, until the said provinces shall be enabled thereto, his
Majesty would allow eight or ten small men-of-war constantly to
attend this general government and to protect the trade ; which
ships to be under the command and direction of the said captain-
general, and to be paid their wages by the joint government of
the whole continent so soon as the ability of this new general
government can allow of." (Lord Stair's Plan, 1721.)
"That the president-general, with the advice of the grand
council, equip vessels of force to guard the coasts and protect the
trade on the ocean, lakes, or great rivers." (Franklin's Plan of
1754.)
"The United States, in congress assembled, shall also have
the sole and exclusive right and power of making rules for the
3<H
Federalism in Detail
government and regulation of the said land and naval forces and
directing their operation.
" The United States, in congress assembled, shall have author-
ity to build and equip a navy." (Articles of Confederation, 1778.)
' ' The congress shall have the sole power of building, pur-
chasing, and equipping a naval force in the service of the United
States of America ; making rules for the government of the said
naval force, admiralty office ; directing, ordering, and command-
ing the said naval force, admiralissimo, subordinate officers,
naval office in all their operations and proceedings. Each state
shall, within five years, establish a foundation for a naval semi-
nary, making suitable provision for the constant maintenance,
education, and fitting for sea five youths for every thousand
white inhabitants within such state." (Drayton's Articles of Con*
federation, 1778.)
' • The legislature of the United States shall have the power to
build and equip fleets ; to provide such dock -yards as may be
necessary for the United States, and to exercise exclusive jurisdic-
tion therein." (Pinckney's Plan, 1787.)
"The congress shall have power to provide and maintain a
navy.
"And to exercise like authority [i.e., exclusive authority] over
all places purchased by the consent of the legislature of the state
in which the same shall be, for the erection of forts, magazines,
arsenals, dock-yards, and other needful buildings." (The Con-
stitution.)
20. Controversies between States.
"That the power and duty of congress shall extend to the
settHng all disputes and differences between colony and colony
about limits or any other cause." (Franklin's Articles of Con-
federation, 1775.)
" The United States, in congress assembled, shall also be the
last resort on appeal in all disputes and differences now subsist-
ing, or that hereafter may arise, between two or more states con-
cerning boundary, jurisdiction, or any other cause whatever."
(Articles of Confederation, 1778.)
30 305
Evolution of the Constitution
" The congress shall have the sole power of being the dernier
ressort on appeal in all cases of dispute between any two or more
of the United States." (Drayton's Articles of Confederation,
1778.)
"They [the senate] shall have the exclusive power to regfu-
late the manner of deciding all disputes and controversies now
existing, or which may arise, between the states, respecting
jurisdiction or territory." (Pinckney's Plan, 1787.)
" The judicial power shall extend to controversies between
two or more states." (The Constitution,)
21. Treaty-making Power.
" That the president-general, with the advice of the grand
council, hold or direct all Indian treaties in which the general
interest or welfare of the colonies may be concerned." (Frank-
lin's Plan of 1754.)
"That the president, by the advice of the council, may hold
and manage all Indian treaties in which the general interest or
welfare of the colonies may be concerned." (Hutchinson's Plan,
1754.)
" That the power and duty of congress shall extend to enter-
ing into alliances." (Franklin's Articles of Confederation, 1775.)
" That the president and commander-in-chief shall have no
power to make war or peace, or enter into any final treaty, with-
out the consent of the general assembly and legislative council. ' '
(South Carolina Constitution of 1776.)
' ' The United States, in congress assembled, shall have the
sole and exclusive right and power of entering into treaties and
alliances, provided that no treaty of commerce shall be made
whereby the legislative power of the respective states shall be
restrained from imposing such imposts and duties on foreigners
as their own people are subjected to, or from prohibiting the
exportation or importation of any species of goods or commodities
whatsoever." (Articles of Confederation, 1778.)
" The congress shall have the sole power of entering into and
concluding treaties and alliances with foreign powers." (Dray-
ton's Articles of Confederation, 1778.)
306
Federalism in Detail
"The senate shall have the sole and exclusive power to make
treaties." (Pinckney's Plan, 1787.)
" He [the President] shall have power, by and with the advice
and consent of the senate, to make treaties, provided two-thirds
of the senators present concur," (The Constitution.)
22. Money not to Issue from Treasury except by
Law.
"Yet no money to issue but by joint orders of the president-
general and grand council, except where sums have been appro-
priated to particular purposes and the president-general is pre-
viously empowered by an act to draw for such sums. ' ' (Franklin' s
Plan of 1754.)
' ' But no money shall issue out of any treasury without the
special order of the president, by the advice of the council, ex-
cept where sums have been appropriated to particular purposes,
and the president shall be specially empowered to draw for such
sums." (Hutchinson's Plan, 1754.)
' • No moneys shall be issued out of the treasury of this com-
monwealth and disposed of (except such sums as may be appro-
priated for the redemption of bills of credit or treasurer's notes,
or for the payment of interest arising thereon), but by warrant
under the hand of the governor for the time being, with the ad-
vice and consent of the council for the necessary defence and
support of the commonwealth, and for the protection and preser-
vation of the inhabitants thereof, agreeably to the acts and re-
solves of the general court." (Massachusetts Constitution of
1780.)
The above provision from the Massachusetts constitution of
1 780 is repeated in the New Hampshire constitution of 1 784.
' ' No money shall be drawn from the treasury but in conse-
quence of appropriations made by law." (The Constitution.)
23. Post-Office.
"That there be a post established to pass once a week, at
least, through all the provinces from the southernmost settlement
307
Evolution of the Constitution
to the most northerly, that is possible, with orders to send intelli-
gences ; and that every governor may correspond with the gen-
eral on all occasions." (Lord Stair's Plan, 1721.)
"The United States, in congress assembled, shall also have
the sole and exclusive right and power of establishing and regu-
lating post-offices from one state to another throughout all the
United States, and exacting such postage on the papers passing
through the same as may be requisite to defray the expenses of
the said office." (Articles of Confederation, 1778.)
"The congress shall have the sole power of establishing and
regulating post-offices throughout the United States, exacting such
postage as may be necessary to defray the expense of the said
offices, or any part thereof." (Drayton's Articles of Confedera-
tion, 1778.)
• • The legislature of the United States shall have the power
to establish post-offices ; to establish post-roads. ' ' (Pinckney's
Plan, 1787.)
" The congress shall have power to establish post-offices and
post-roads." (The Constitution.)
24. Treason.
"The congress shall have power to declare what shall be
deemed treason against the United States of America, and in
what manner such treason shall be punished." (Drayton's Arti-
cles of Confederation, 1778.)
' • The legislature of the United States shall have the power to
declare the punishment of treason, which shall consist only in
levying war against the United States, or any of them, or in ad-
hering to their enemies. No person shall be convicted of treason
but by the testimony of two witnesses." (Pinckney's Plan, 1787.)
" Treason against the United States shall consist only in levy-
ing war against them, or in adhering to their enemies, giving
them aid and comfort. No person shall be convicted of treason
unless on the testimony of two witnesses to the same overt act,
or on confession in open court.
' • The congress shall have power to declare the punishment
of treason, but no attainder of treason shall work corruption of
308
Federalism in Detail
blood, or forfeiture, except during the life of the person attainted."
(The Constitution.)
25. Letters of Marque.
"The United States, in congress assembled, shall have the
sole and exclusive power of granting letters of marque and re-
prisal in times of peace." (Articles of Confederation, 1778.)
' ' The congress shall have the sole power of granting letters
of marque and reprisal." (Drayton's Articles of Confederation,
1778.)
' ' The congress shall have power to grant letters of marque
and reprisal." (The Constitution.)
26. Nationality.
' • The right of making laws for the United States should be
vested in all their inhabitants.
" In all the affairs that respect the whole, congress must have
the same power to enact laws and compel obedience throughout
the continent as the legislatures of the respective states have in
their several jurisdictions. If congress have any power, they
must have the whole power of the continent.
" Let every state reserve its sovereign right of directing its own
internal affairs ; but give to congress the sole right of conducting
the general affairs of the continent. ' ' (Noah Webster' s ' ' Sketches
of American Policy," 1785.)
' ' We, the people of the states of New Hampshire, Massachu-
setts, Rhode Island and Providence Plantations, Connecticut,
New York, New Jersey, Pennsylvania, Delaware, Maryland,
Virginia, North Carolina, South Carolina, and Georgia, do ordain,
declare, and establish the following Constitution for the govern-
ment of ourselves and posterity." (Pinckney's Plan, 1787.)
" We, the people of the United States, in order to form a more
perfect union, establish justice, insure domestic tranquillity, pro-
vide for the common defence, promote the general welfare, and
secure the blessings of liberty to ourselves and our posterity, do
ordain and establish this Constitution for the United States of
America." (The Constitution.)
309
CHAPTER VIII.
CLAUSES OF THE CONSTITUTION WHICH WERE OF SHORT
DEVELOPMENT.
In the course of the evolution which has been traced
in the preceding chapters it is noticeable that almost
every document contained a few points that were new,
and in this way the development progressed. Almost
every colony, State, or person that was considered con-
tributed its share, and it would be extremely difficult
to decide what place or what person did the most
When the Constitution had absorbed all this develop-
ment, it also, like its predecessors, added some new
provisions which were suggested by circumstances, and
these are the only parts of the Constitution which can
be said to have been "struck off at a given time."
They were not, however, imitations of anything in
Europe, Most of them were very simple and necessary
provisions, which speak for themselves :
1. The debts contracted by the government under the Articles
of Confederation to be valid against the government under the
Constitution.
2. Congress to have exclusive jurisdiction over such district
(not exceeding ten miles square) as should become the seat of
government.
3. The United States to protect each state from invasion, and
also from domestic violence, on application of the legislature of
the state, or, if it is not in session, on application of the gov-
ernor.
310
Clauses of Short Development
4. The ratification by the conventions of nine states to be suf-
ficient to estabUsh the Constitution between the states so ratifying.
5. The United States to guarantee to every state a republican
form of government.
6. The times, places, and manner of holding elections for
senators and representatives to be prescribed in each state by the
legislature thereof ; but the congress may, at any time, by law,
make or alter such regulations, except as to the places of choosing
senators.
7. The President may require the opinion, in writing, of the
principal officer in each of the executive departments, upon any
subject relating to the duties of their respective offices.
8. The congress to have power to establish uniform laws on
the subject of bankruptcies.
9. No senator or representative to hold any office which shall
have been created or the emoluments thereof increased during
the time for which he was elected.
10. The importation of slaves not to be prohibited prior to the
year 1808, but a tax on such importation not exceeding ten dol-
lars for each person may be imposed.
11. New states to be admitted into the Union by congress.
12. The congress to have power to dispose of and make rules
and regulations for the territory or other property of the United
States.
13. No tax or duty to be laid on articles exported from any
state. No preference to be given by any regulation of commerce
or revenue to the ports of one state over those of another. Ves-
sels bound to or from one state not to be obliged to enter, clear,
or pay duties in another.
Among the amendments, the ninth, which says that
the enumeration of certain rights shall not be construed
to disparage others retained by the people, and the
tenth, which says that the powers not delegated to the
United States nor prohibited to the States are reserved
to the States or to the people, were the result of the
3"
Evolution of the Constitution
agitation of the State-rights party, and were adopted
immediately after the Constitution went into effect.
The eleventh amendment, which prohibits the extension
of the judicial power to any suit against any one of the
States by citizens of another or by citizens of a foreign
state, was also the result of the same agitation.
There were also two parts of the fifth amendment
which are not to be found in previous American consti-
tutions,— the guarantee that no person shall be held to
answer for a capital or infamous crime except on in-
dictment of a grand jury, and the guarantee that no per-
son shall be deprived of life, liberty, or property without
due process of law. These were old principles well
known for centuries among the English race, and they
had appeared in colonial statutes. It was thought that
their enforcement would be better secured by making
them a part of the National Constitution.
Since the adoption of the twelfth amendment, which
altered the method of electing the President, there have
been no amendments except those made immediately
after the civil war, and, as they were the result of that
war, and their history is well known, they need not be
considered.
There are three clauses in the Constitution still re-
maining undiscussed which were preceded by a slight
development, and their history can be traced to some
extent in colonial times.
The first is the provision that, when vacancies occur
in the representation from any State, the executive au-
thority of the State may issue writs of election to fill
such vacancies. Some of the colonial charters, like
312
Clauses of Short Development
those of Massachusetts and of Rhode Island, gave the
assembly authority to fill vacancies in executive offices
until there should be another election ; but vacancies
in the assembly were not specially provided for. Some
of the constitutions of 1776, particularly those of Dela-
ware, Georgia, and North Carolina, directed that the
legislature should issue writs of election for filling any
vacancies that might occur in its membership. The
Maryland constitution of 1776 provided that such writs
should be issued by the speaker ; and the Pennsylvania
constitution of the same year gave general power to the
president and council to fill all vacancies in office, but
whether this would include vacancies in the legislature
is doubtful. The provision in the Maryland constitu-
tion was like the English practice of that time, by which,
when a vacancy occurred in the House of Commons,
the Speaker could order another election to fill the
vacancy.
The Constitution also directs that the President shall
receive a salary, and that the senators and representa-
tives shall receive a compensation for their services.
The members of the British Parliament received no
salaries, and it seems to have been a disputed question
at the time our National Constitution was framed whether
members of Congress should be paid for their services.
Franklin argued very earnestly that they should not be
paid. The previous documents had usually been silent
on this subject ; but some of the constitutions of 1776,
notably that of Virginia and the Massachusetts consti-
tution of 1780, had provided for the salaries of the gov-
ernor and other officers ; and the Pennsylvania Frame
3^3
Evolution of the Constitution
of 1696 gave the members of the council five shillings
a day, the members of the assembly four shillings a day,
and the members of both bodies twopence a mile for
travelling expenses.
The provision in the Constitution requiring the pub-
lication, from time to time, of a statement and account
of the receipt and expenditure of all public money had
appeared before in several of the plans of union.
This completes our analysis of the Constitution, every
clause of which has been traced to its origin. The
analysis seems to show that the Constitution was a
growth, and that it is as much the result of the natural
development of progressive history as is the British Con-
stitution. It was not, as Mr. Gladstone says, "struck
off at a given time ;" nor was it, as Herbert Spencer
would have us think, " obtained by a happy accident,
not by normal progress ,•" and the description of it given
by Von Hoist and others as "a mere experiment" is
equally inaccurate.
314
CHAPTER IX.
DUTCH SOURCES.
The appearance of Mr. Campbell's work, " The Puri-
tan in Holland, England, and America," was a great
surprise to both lawyers and scholars. It was an unex-
pected, stunning blow ; a clap of thunder out of a clear
sky. Two large, handsome volumes, written in an >at-
tractive, even brilliant manner, informing us in sharp,
sarcastic sentences, with an immense array of facts, that
our most cherished liberties and customs were neither
English nor native, but Dutch, was so dazing that no
one at first knew what to say, and we have scarcely yet
mustered courage enough to frame a reply.
In all other books that describe or criticise our insti-
tutions,— whether written by ourselves or by foreigners,
— there is not even a suggestion that our sources were
Dutch, In all our political histories in which every
event of our growth is given, from the settlement of Vir-
ginia in 1607 down to the present decade, there is not
a sentence or a hint that would have led one to this
discovery of Mr. Campbell's. More than that, if we
examine the original authorities, the writings and docu-
ments of the colonists and of the framers of the con-
stitutions of the States and of the Constitution of the
nation, we find not a word to show that those men, our
ancestors, were conscious that they were copying from
315
Evolution of the Constitution
Holland. I certainly never saw an original document,
letter, speech, or writing of any kind in which a father
of the republic said that American institutions were of
Dutch origin, or in which an argument was made in
favor of transplanting Dutch institutions to America.
Mr. Campbell quotes no writings of this sort, and it is
not unfair to infer that none exist
His method of proof is not at all documentary, al-
though in his preface he tells us that documents are the
only sure tests for the truth of history, and he has much
to say of modern scientific methods of investigation. In
the past, he tells us, history was written by legends,
tradition, and rumor. Public documents were consid-
ered parts of the private library of the king, and it is
only of recent years that official records, diplomatic
correspondence, and state papers have become accessible
to historians. " One can imagine," he says, " the posi-
tion of a writer who sat down to compose a work upon
his own or any other country when such material was
everywhere kept a secret." But Mr. Campbell seems
to have taken the place of those ancient kings, and fails
to furnish his readers with anything in the nature of
documentary proof
A great deal of his information, as he frankly admits,
has been obtained at second hand from miscellaneous
reading in books like Carnegie's " Triumphant Democ-
racy," "The Chautauquan," and magazine articles. The
results of the original research among documents of
which he says so much in the preface we look for in
vain, and we find him generously acknowledging that
he is greatly indebted to Carnegie's " Triumphant De-
316
Dutch Sources
mocracy" for a large number of valuable facts (vol.
i. p. 22).
His method of proof may be called the speculative
method, — the method of suggestion, presumption, prob-
ability. He wanders round and round his subject with
telling anecdotes, witticisms, gibes at the ancient histo-
rians, and paeans to liberty. All European nations ex-
cept Holland have been so cruel and wicked, and have
had such ridiculous laws and governments, that, as the
United States is the only other nation in the world that
has not been cruel, wicked, and ridiculous, the reader
may judge for himself as to the possibility, if not proba-
bility, and perhaps certainty, of the one being derived
from the other.
He informs us at great length that the English are
prone to exaggerate their own merits, trace everything
to themselves, and ignore the services of other nations.
The writers of New England have all been men of Eng-
lish origin, and would naturally, therefore, be silent
about the Dutch sources and assign their institutions to
English causes. But if New England was so thoroughly
permeated with Dutch ideas, as he elsewhere maintains,
how was it that the writers escaped ? If the Dutch influ-
ence had been powerful enough to create institutions,
would it not have been powerful enough to compel
acknowledgment, or at least an admission or a com-
plaint ?
He has a very clever way of throwing out a sugges-
tion which will leave a significant impression on the
mind of an ordinary reader. Thus, in his preface, after
saying that in 1563 the Dutch were famous for their
317
Evolution of the Constitution
ingenuity in inventing all sorts of machines for shorten-
ing labor, he says, " Here is the Yankee of Europe,"
and this hint, mixed with others of a similar kind, grad-
ually builds up the feeling that of two countries so nearly
alike one must be the copy of the other.
After wandering through hundreds of pages heaping
up these possibilities, insinuations, and suggestions, and
doing it in a manner irresistibly bright and attractive,
Mr. Campbell has completely accomplished his pur-
pose,^— at least temporarily, — for an untrained mind can
hardly resist the impression that America was thor-
oughly Dutch in origin ; that our Constitution, the New
England township system, our land laws, our customs,
and our general principles of dealing, conduct, and gov-
ernment are from Holland, not England ; and one begins
to wonder how it is that the language still remains
English.
The book is in its individual sentences very clear, but
the general arrangement is most confusing to any one
who wants definiteness and accuracy. It is a mere col-
lection of points mixed in with a vast assemblage of
facts and anecdotes taken from the history of nearly the
whole world. There is no regular, orderly statement of
propositions to be proved ; no separate statement of
each individual item of Dutch imitation followed by its
proof, and no thorough analysis.
For example, why should not that little item of the
recording of deeds and mortgages, which he says came
from Holland, be in a chapter or at least a paragraph by
itself, with all that can be said in favor of the imitation,
and then done with it ; and so on with the next item ?
3«8
Dutch Sources
Why should the recording item be spread out in various
parts of the book, with references to it eveiy now and
then ? Why should the careful reader, seeking definite,
positive knowledge, feel that he must go through the
ten hundred and twenty-one pages of the two volumes
with a pencil, setting down any distinct item of imitation
he can find and putting under it any proof he can collect
from the whole? If the work had been divided into
distinct topics of positive imitations it could all have
been written in one chapter with sub-headings for each
imitation, and would hardly have extended much beyond
the limits of a magazine article.
In reading the book one examines table of contents,
text, and chapter-headings in vain in the search for a
definite division of topics, with proof and argument
assigned to each, and it is not until near the end of
the second volume that a page (vol. ii. p. 465) is found
where the author sums up, with some degree of explicit-
ness, the American institutions which he thinks he has
proved were copied from Holland. I shall give the list
in his own words :
1. The Federal Constitution as a written instrument.
2. The provisions in this instrument placing checks on the
power of the President in declaring war and peace and
in the appointment of judges and all important execu-
tive officers.
3. The whole organization of the Senate.
4. Our State constitutions.
5. Freedom of religion.
6. Free press.
7. Wide suffrage.
8. Written ballot.
319
Evolution of the Constitution
9. Free schools for boys and girls.
10. The township system (with its sequence of local self-govem-
ment in county and State).
11. The independence of the judiciary.
12. The absence of primogeniture.
13. The subjection of land to execution for debt.
14. The system of recording deeds and mortgages.
15. Public prosecutors for crime in every county.
16. The constitutional guarantee that every accused person shall
have subpoenas for his witnesses and counsel for his
defence.
17. The reforms in our penal and prison system.
18. The emancipation of married women.
19. The whole organization of our public charitable and reforma-
tory work.
In taking up the instances of imitation I cannot treat
them either in the order in which Mr. Campbell has
summed them up or in the order in which they occur
throughout the book, for neither order would disclose
the true bearings of the subject. Nor is it necessary to
discuss every one of them, I shall begin with No. 10,
" The township system (with its sequence of self-govern-
ment in county and State)," because this brings us at
once to fundamental principles and decides the ques-
tion, which is, of course, at the bottom of all the others,
How did the Dutch influence reach America ?
It is obvious to any one who notices the way in which
Mr. Campbell has worded this item of imitation, "The
township system (with its sequence of self-government
in county and State)," that it is overwhelming in its
effects. If it is true that the Dutch established the
New England township system and that that created
self-government in the counties, and that thence came
320
Dutch Sources
State sovereignty, the Dutch undoubtedly created the
whole United States. If Mr. Campbell could establish
that one item No. lo, I for one should be willing to sur-
render all the others. They would not be worth con-
tending for, and it would remain merely to call on Mr.
Campbell to explain by what accident it was that our
language still remained English and why our courts
still continued to cite authorities from the English law
reports.
Mr. Campbell's argument I understand to be this :
The Pilgrim Fathers, so called, were a sect of Brownists
or Independents who were terribly persecuted for their
religion in England, and fled to Holland, where they
lived, first at Amsterdam, afterwards at Leyden, for
twelve years. During that time they probably acquired
a knowledge of Dutch institutions, especially the Dutch
towns, which governed themselves with more or less in-
dependence. At the end of the twelve years about one
hundred of them came to America and settled on the
coast of Massachusetts at a place they called New
Plymouth, about fifty miles from Boston.
About ten years after their arrival a large number of
English people called Puritans came upon the coast
and settled in the neighborhood of Boston. These peo-
ple continued to come for about ten years, and vastly
outnumbered the Independents, or Pilgrim Fathers, who
had settled at New Plymouth. The new-comers, or
Puritans, were not Dutch, and had not, as a class, been
in Holland ; but two of them had, — namely, Dudley,
who was afterwards governor, and had been a soldier in
the Dutch army, and Hugh Peters, a minister, who had
ai 321
Evolution of the Constitution
once had a congregation in Holland ; and doubtless
others whom we have not heard of had been in Hol-
land. They had, however, nearly all of them come
from the southern and eastern parts of England, where,
half a century before, large numbers of Dutch immi-
grants had settled. As we find that all these people in
Massachusetts established towns which governed them-
selves in purely local matters, and as there were similar
towns in Holland, the Massachusetts town system was
clearly of Dutch origin.
So much for the entering in of the influence. Mr.
Campbell goes on to show how it spread. People from
Massachusetts, some from the Plymouth colony, and
some from the Puritans, founded Connecticut and es-
tablished self-governing towns, which were also clearly
of Dutch origin, because the people who established
them had been under the Dutch influence in Massa-
chusetts, and one of these Connecticut settlers, Thomas
Hooker, the minister, had lived for a time in Holland.
About the same time that these events occurred in
New England, or soon after, the Dutch established
these same self-governing towns in their colony at New
York. And from these Dutch sources in Massachusetts,
New York, and Connecticut, establishing the idea of
local self-government in a town, that idea has spread
to the whole country, creating the local self-govern-
ment of our counties all over the Union and the self-
government of our States, or State sovereignty, as we
call it
This Dutch influence prevailed not only in Massa-
chusetts, Connecticut, and New York, but, according to
322
Dutch Sources
Mr. Campbell, in New Jersey, which was originally a
part of the New York Dutch colony ; and it also pre-
vailed in Pennsylvania and Delaware, because William
Penn's mother had been a Dutchwoman, and Penn
himself had travelled in Holland and was familiar with
its language and people. The northern and middle
Atlantic States were therefore pervaded by this influ-
ence, and, as those are the States which have in effect
created the Union and given forth the dominating prin-
ciples of American civilization, it is ridiculous to say
that our ideas and institutions are English. The only
part of the country where English notions prevailed was
the South, and all it gave was slavery. Virginia may
have contributed the idea of the natural equality of
man, but she borrowed this from the Roman law.
The Dutch influence, being thus firmly established in
the dominating part of the country, and having evi-
dently created the township system with all its conse-
quences, was also fruitful in establishing other customs,
laws, and institutions. The Connecticut people, at their
first settlement, drew up a document creating a legisla-
ture and government, and this has been called the first
American written constitution. This idea of reducing
the principles or form of government to writing must
have been taken from Holland, because the Netherland
Republic had existed for about half a century under the
Union of Utrecht, which was a written constitution.
These written constitutions became the regulation forms
for the States after the Revolution, copied, of course,
from Connecticut's instrument, which was copied from
Holland ; and, as our Federal Constitution is written, it
3^3
Evolution of the Constitution
follows that, so far as it is a written instrument, it also
is of Dutch origin.
One would suppose that, having proved that our local
self-government in towns, our State governments, our
State constitutions as written instruments, and our Na-
tional Constitution as a written instrument were of
Dutch origin, Mr. Campbell would be content But
he is not, and he goes on piling up the resemblances.
Religious liberty existed in Holland before it was
established anjavhere else in Europe. We also find it
among the Dutch in New York and in the laws made
by Penn for Pennsylvania : so that the American princi-
ple of religious freedom may be said to have come from
Holland. It is true that in Massachusetts we find a
church established by law and heresy punished with
death ; but this, Mr. Campbell assures us, was because
the Puritans had not, in this particular, imbibed the full
measure of the Dutch influence.
Similarly, we find free schools in Holland, New Eng-
land, and New York : so that the American public-school
system had its source in the Netherlands, and it has
now filled the whole Union. So, also, the system of
recording deeds and mortgages was unknown in Eng-
land, but was common practice in the Netherlands,
whence it was introduced into Massachusetts, New
York, New Jersey, and Pennsylvania, and thence to the
whole country.
In England the distribution of land among smajl
holders was fettered by primogeniture, which has now
given the soil of Great Britain into the hands of a few
aristocrats and left the mass of the people in poverty,
324
Dutch Sources
with scarcely space on which to stand. The Dutch law,
which gave equal inheritance to all children, prevailed
in New York, and was, of course, well known to William
Penn and the people who settled New England. Hence
we have in the United States an absence of primogeni-
ture and an easy and approximately equal distribution
of land, which has prevented grinding poverty and en-
couraged the energy and enterprise of our people.
Such is, in brief, Mr. Campbell's argument And
now for something on the other side.
First of all, we must have a clear idea of the exact
nature of the New England town system, which Mr.
Campbell says was introduced from Holland. The New
England town was a little democracy of people who
elected their own officers and through them governed a
district of land much smaller than a county. Each town
also sent its representatives to the general assembly of
the colony. It was a system of local government by
means of small districts, each of which had entire charge
of its own affairs. The peculiarities about it were the
small size of each district, the absolute control over its
own affairs, the free voice and vote of all the people in
exercising that control, and their right to be represented
as a town in the general assembly.
But Mr. Campbell's rather vague description of the
Dutch towns would not imply that they had these charac-
teristics at the time the English colonies in America
were settled. The most important one of all — the free
suffrage and democracy — was absent " In few, if any
of them," he says, " was there an approach to democracy
in later times. That had passed away with the advance
325
Evolution of the Constitution
of wealth, the rich merchants and manufacturers who
secured the charters having generally absorbed the power
originally lodged in the whole body of the freemen."
(Vol. i. p. 147.)
Elsewhere (vol. ii. p. 429) he says that the free
suffrage had been retained in some of the most obscure
provinces of the northeast, and, as the Pilgrim Fathers
who came to Massachusetts were not in those provinces
of the Netherlands, he has a labored argument to show
how they might, nevertheless, probably have heard
about it.
Apparently the only resemblance which the Dutch
towns near where the Pilgrim Fathers lived bore to those
established in Massachusetts was that the six important
ones could send representatives to the assembly of the
States. The right of the small towns to send repre-
sentatives and their democratic government had been
lost hundreds of years before. This makes the resem-
blance somewhat lame ; and the argument is still further
weakened by an admission in another passage (vol. i.
p. 75) that the township system prevailed in Central Asia
and still exists in Upper India. So the Dutch were,
after all, not its inventors.
But let us pass all this for the present, for we shall see
the Dutchman's idea of town government when we come
to the history of New York. Let us suppose, for the
sake of argument, that the towns in Holland were all
self-governing and represented as towns in the legisla-
ture, just as Mr. Campbell would like to have them, —
how does he prove that the Massachusetts people imi-
tated them ? He must show some connecting Hnk ; he
326
Dutch Sources
must give positive proof of imitation, because without
this it is perfectly possible that the people of New Eng-
land developed their town system out of natural condi-
tions, as the people of Central Asia or of Upper India,
or the Dutch themselves, developed towns to suit their
purpose.
Mr. Campbell, however, neither quotes nor cites any
document, pamphlet, letter, or writing of any kind in
which any of the people who settled Massachusetts ex-
pressed a liking for the Dutch town system or urged its
adoption in the colony. If they were so infected by the
Dutch influence, would they not have said something
about it ? Would they not have argued in its favor and
urged its extension ? They were great writers. Many
of them kept diaries and journals that have come down
to us. We have also their letters, the pamphlets, and
the books they wrote, all preserved with the scrupulous
care with which Massachusetts guards every scrap of
paper relating to her history. How was it that none of
the Cottons or Mathers — men of such vast learning, the
authors of so many books and essays on all sorts of sub-
jects— never touched on Holland ? How is it that in
all the writings of Massachusetts, from beginning to end,
there is nothing Mr. Campbell can quote to show a
Dutch influence, not merely in this township question,
but in other things or in general ?
If there is nothing that shows Dutch influence in gen-
eral, would not the introduction of some special Dutch
institution like the towns have aroused comment or
resistance, and would there not at least be something to
quote on this point ? Even Mr. Campbell does not con-
327
Evolution of the Constitution
tend that eveiy one of the Puritans was hterally an out-
and-out Dutchman. If there was even a small minority
of out-and-out Englishmen in the colony, would they
not have protested against the introduction of a foreign
method of government, and, like those minorities that
followed Roger Williams or Anne Hutchinson, raised a
controversy about it of which there would at least be
some scrap of evidence?
As a matter of fact, we all know that there were in
the colony from the very beginning Church of England
people and others who objected most strenuously to the
Puritan methods of government, and sent home reports
finding all the fault they could think of. Other dis-
gruntled persons went to England in person to make
complaints. Many of these complaints were addressed
to royalists and to the Crown with the intention of bring-
ing down vengeance on the Puritans of Massachusetts
and depriving them of their charter. They continued
to be made for fifty years, and in the end were success-
ful, and the charter was annulled in 1684.
Now, is it possible that, among all these complaints
made by Tories, none can be found to the effect that
the colonists had adopted a foreign system of local gov-
ernment? Charles II. and James II. had no love for
Holland, their enemy, and, in the end, the destroyer of
their dynasty and house. What appeal to their resent-
ment against Puritan Massachusetts would have been
more effective than to tell them that the colony was
adopting the laws and methods of Holland ?
Mr. Campbell meets none of these points. In fact,
he admits, in the fullest manner, not only that there was
328
Dutch Sources
no general resemblance to Holland in Massachusetts,
but that in most respects the colony was the very re-
verse of Holland in the things for which Holland was
most famous. Freedom of religion, freedom of the
press, separation of church and state, and humane laws
were the great Dutch principles which Mr. Campbell
says were copied by the United States. But Massachu-
setts punished heretics with death or banishment, had
the severest sort of censorship of the press, a church
established by law, the right to vote and hold office
confined to church-members, a set of the most bloody
and cruel laws, punishing more than twenty offences
with death ; and, as is well known, she kidnapped the
Indians and sold them as slaves, killed hundreds of peo-
ple for witchcraft, whipped hundreds of Quakers at the
cart's tail, and hung four of them for persisting in their
religious belief.
But a little difficulty like this is nothing to a man
of Mr. Campbell's ingenuity, and, accordingly, we find
him saying in explanation (vol. ii. p. 415), "But at
this period she was in a few respects less advanced
than her sister colonies, simply because she had ab-
sorbed less from the Netherland Republic."
In other words, the colony where, as Mr. Campbell
contends, the Netherland influence entered — the colony
where there was more direct Netherland influence than
in any other part of the country except New York —
was less like Holland and had fewer of the great Nether-
land principles than parts of the country where there
was no Netherland influence at all.
But let us do some of Mr. Campbell's work for him,
329
Evolution of the Constitution
and examine the early writings of Massachusetts to see
what they say of this Dutch influence, and also what
they say about the beginning of the town system. The
first and most important is Bradford's " History of
Plymouth Plantation."
Bradford was the leader of the Pilgrim Fathers. He
started with them in England when they fled to Hol-
land. He lived with them during the twelve years'
sojourn in Amsterdam and Leyden. He came with
them to Massachusetts, assisted in founding the settle-
ment at New Plymouth, was elected their governor
over and over again, and remained with them until his
death in 1657. He was a man of good education,
familiar with French, Latin, Greek, and Hebrew, and a
student of history and theology. His " History of
Plymouth Plantation" is the history of an eye-witness,
and, as it goes very much into details, it is an authority
of the highest importance. If there was strong Dutch
influence among his people after they came to Massa-
chusetts, it would surely show itself in his book.
But when we read the book there is nothing Dutch
about it Indeed, when we consider that he and his
people had been in the Low Countries for twelve years,
it is surprisingly free from anything of the sort ; and
our first thought is, that, as usually happens when
people of mature years sojourn in a foreign country,
very little impression had been made upon their minds,
and they remained the out-and-out Englishmen they
had been bom and bred. If the Pilgrim Fathers had
gone to the Netherlands when they were children, and
had grown up in the country, their ideas and conduct
330
Dutch Sources
might have been different. But in the whole book
there is only one passage showing any liking for Dutch
ways or giving a Dutch reason for anything, and that
is an account of the first marriage-ceremony that was
performed :
" May 12 was the first marriage in this place which according
to the laudable custom of the Low Countries, in which they had
lived, was thought most requisite to be performed by the magis-
trate, as being a civil thing, upon which many questions about
inheritances do depend with other things most proper to their
cognizance and most consonant to the Scriptures, Ruth 4, and
nowhere found in the Gospel to be laid on the ministers as a part
of their office. This decree or law about marriage was published
by the States of the Low Countries A.D. 1590. That those of
any religion after lawful and open publication coming before the
Magistrates in the Town or State House were to be orderly (by
them) married to one another. Peters Hist. Fol. 1029. And
this practice hath continued amongst, not only them, but hath
been followed by all the famous churches of Christ in these parts
to this time. Ano. 1646." (Mass. Hist. Coll., 4th series, vol.
iii. p. loi.)
I cannot tell, of course, whether Mr. Campbell knew
of this passage ; but at any rate he does not quote it, and
it would help him very little. He does not contend,
so far as I know, that the Dutch, through the Pilgrim
Fathers, or in any other way, introduced into this coun-
try the custom of being married before a magistrate
instead of before a minister of religion. It would be
in vain to make such a contention, for no such custom
exists. Our people are almost universally married by
ministers of religion, although marriages before magis-
trates, mayors, or competent witnesses of any kind are
33»
Evolution of the Constitution
usually held valid, as they were in the old common law
of England.
So far cis it goes, this passage from Bradford would
prove that the Pilgrim Fathers attempted to introduce
a Dutch method which has been rejected by the Ameri-
can people. And the passage is the more noteworthy
on this account, because it is a rebuke to all those
spread-eagle writers who assume that everything that
was done near Plymouth Rock spread out into the whole
United States, and must be traced back to the rock as
a cause.
The passage is the only one I know of in the whole
range of Massachusetts literature that gives a Dutch ori-
gin for anything. I was once quite familiar with many
of the original authorities of the colonial history of Massa-
chusetts, and I can remember nothing Dutch in them.
I have not gone over all of them again to write this
chapter, for it would be a great labor, and is not neces-
sary. But I have gone over those which relate to the
first settlement, the time when the town system was
introduced, and the twenty years that followed. These
are the ones which are relevant and essential, for, if
there was as much Dutch influence among the colonists
as Mr. Campbell asserts, it would have shown itself at
once, certainly within the first twenty years. If there
are no signs of it within those twenty years, there is, in
my opinion, no proof of it.
I have selected the first twenty years — that is, from
1620 to 1640 — because after that immigration ceased,
and there were no more important additions to the
population by migration until long after the Revolution.
332
Dutch Sources
So far as the Plymouth Plantation is concerned, those
twenty are more than covered by Bradford's history.
But the Plymouth colony was very small and unsuccess-
ful, and the large majority of the Massachusetts popula-
tion was made up of the Puritans, who, ten years after
the arrival of the Pilgrims, came and settled in the
neighborhood of Boston. They increased very rapidly
for ten or more years by immigration until there were
about twenty thousand, and after that their increase was
also rapid by births.
These people were direct from England, and had
never sojourned in Holland. But, as Mr. Campbell says
that they had come from the southern and eastern parts
of England, to which many Hollanders had migrated
half a century before, it is necessary to examine an au-
thority which will include them. There is an excellent
one, — "Winthrop's Journal," — which has sometimes
been published as "Winthrop's History of New Eng-
land." It is much more voluminous and detailed than
Bradford's history, and comes down to a later time.
Winthrop was an accomplished man of some means,
who came out with the first of the Puritans, was their
first governor, and was re-elected governor again and
again for many years. He was a lawyer by education,
and at the time of his arrival in the colony was forty-
three years old, in the prime of life, keen, active, inter-
ested in everything, and recorded day by day in his
journal minute details of events, and especially contro-
versies and disputes, in which he usually gave the argu-
ments of both sides. I have examined this book from
beginning to end, and, if it contains anything showing
333
Evolution of the Constitution
the slightest trace of Holland or Dutch influence, or the
slightest trace of any institution, custom, or law estab-
lished for Dutch reasons, I cannot find it
So it stands that there is just one solitary passage in
Bradford's history giving a Dutch reason for establishing
the custom of marriage by magistrate instead of by
minister, and this a custom which was not accepted by
the American people. As Bradford in this instance gave
his reason for the custom, it is fair to conclude that if
anything else had been established for a Dutch reason
he would have said so, and this conclusion is strength-
ened when we find that in describing the method of
allotting land he gives a reason for it, but instead of
being Dutch it is a Roman reason.
I shall quote this passage, but before I do so I wish
to say that Winthrop also gives reasons for the establish-
ment of many things, and they are usually drawn from
the Old Testament, which was the chief guide of the
Massachusetts people in all matters of law and govern-
ment. It was a rule with the magistrates that when no
law could be found applicable to a case it must be
decided according to the Word of God. From the Old
Testament were drawn their reasons for banishing Anne
Hutchinson and Roger Williams, hanging the witches,
and persecuting the Quakers. To give a reason for
everything they did and give it fully and minutely was
one of their most prominent characteristics, and I think
that any one who reads the elaborateness of the argu-
ments used in " Winthrop's Journal" and elsewhere must
be impressed with the thought that if there had been a
Dutch influence at work among these people it would
334
Dutch Sources
have shown itself unequivocally. Moreover, they were
very original in all their methods, and Mr. Campbell
is, I think, the first person who has ever charged them
with plagiarism.
The passage I wish to quote from Bradford in which
the land allotment seems to remind him of Rome is a
very important one :
" That they might therefore encrease their tillage to better ad-
vantage, they made suite to the Governor to have some portion of
land given them for continuance, and not by yearly lotte, for by
that means, that which the more industrious had brought into
good culture (by much pains) one year, came to leave it the next,
and often another might enjoy it ; so as the dressing of their lands
were the more sleighted over, and the less profit. Which being
well considered, their request was granted. And to every person
was given only one acre of land, to them and theirs, as near the
town as might be, and they had no more till the seven years were
expired. The reason was, that they might be kept close together
both for more safety and defence, and the better improvement of
the general employments. Which condition of theirs did make
me often think, of what I had read in Pliny of the Romans first
beginnings in Romulus time. How every man contented himself
with two acres of land, and had no more assigned them. And
chap three. It was thought a great reward to receive at the hands
of the people of Rome a pint of corn. And long after, the great-
est present given to a Captain that had got a victory over their
enemies was as much ground as they could till in one day. And
he was not counted a good, but a dangerous man, that would not
content himself with seven acres of land. As also how they
pound their corn in mortars, as these people were forced to do
many years before they could get a mill." (Mass. Hist. Coll., 4th
series, vol. iii. 167.)
Now I have quoted this passage not only for the
suggestion about Rome which it contains, but because
335
Evolution of the Constitution
it shows the origin of the towns. ** Every person was given
only one acre of land," he says, and "as near the town
as might be," and " the reason was that they might be
kept close together both for more safety and defence and
the better improvement of the general employments."
This is the earliest mention of the towns in any Mas-
sachusetts writing. The event of the allotment of land
of which he speaks happened in 1624, four years after
the colony was founded, and he refers to the town as in
existence, which of course it was ; for when the Pilgrims
landed they built a town of log huts, and they dared do
nothing else. The barren nature of the country and the
immediate hostility of the Indians forbade them to spread
out They must keep together for mutual defence and
for their fishing and trade on the sea.
At first they held their land in common, and it was
cultivated for the public benefit But at best their agri-
culture was merely the cultivation of garden patches.
When they passed beyond the communism and garden
stage the people still lived in the town and went out to
cultivate their lots, which, as Bradford says, were kept
as near the town as possible. All other towns in Mas-
sachusetts, and, for that matter, in New England, were
arranged on the same plan, not because of anything in
Holland or Rome, but because it was a necessity.
When we examine "Winthrop's Journal" we find two
passages confirming this view. A few days after his
arrival with the first ship-load of Puritans that were to
begin the second colony, which in the course of years
absorbed the Plymouth people, he made an entry as
follows :
336
Dutch Sources
'• December 6th, 1630. The Governor and most of the assist-
ants and others met at Roxbury, and there agreed to build a town
fortified upon the neck between that and Boston. " (" Winthrop's
History of New England," Savage's edition, vol. i. p. 38.)
Practical difficulties, such as want of water, prevented
the carrying out of this plan, and a few days after we
have another entry :
"Dec. 21. We met again at Watertown, and there, upon
view, of a place a mile beneath the town, all agreed it a fit place
for a fortified town." {Id., vol. i. p. 39.)
In each instance he speaks of a "fortified" town ; not
a mere straggling settlement, but something more com-
pact, complete, and self-sustaining ; the sort of com-
munity that every one who landed on that stern coast
knew to be a prime necessity.
And so we have both Bradford and Winthrop men-
tioning the town, referring to it as something which was
a matter of course, Bradford giving reasons for keeping
all the people close to the town, even when they were
cultivating their land, and neither he nor Winthrop re-
ferring to Holland in any way whatever. On the con-
trary, Bradford says that the arrangement about the
land reminds him of what he had read of Rome.
In Virginia the natural conditions enabled the reverse
plan to be followed. The mildness of the climate and
the richness of the soil soon revealed that there was not
only a livelihood, but wealth, to be gained by spreading
out and cultivating large tracts of land. This was the
natural method in all the southern colonies, and, ac-
cordingly, the county became the unit of local govern-
ment instead of the township of New England.
M 337
Evolution of the Constitution
The township system would have been an impossi-
bility in the South, where a single farm was often as
large as a New England township ; and farther south
than Virginia several townships could have been put
within a single plantation. The county system became
an inevitable necessity, and we find it everywhere in the
South, becoming of less absolute importance as we go
north, until, in Pennsylvania, we have a combination of
the two systems, — town and county.
But it is to be observed that the first settlers in Vir-
ginia huddled together in Jamestown and held their
land in common like the Pilgrim Fathers ; and for the
same reason. They feared the Indians ; and at first
they gained their livelihood from the fish in the water
and vast quantities of wild fowl along the shores and a
few little patches of land, which they cultivated more
as gardens than as farms. But as soon as they learned
the natural capacity of the country they spread out far
and wide. Their energies became absorbed with in-
land occupations, and they cared little for the sea and
ships.
The New Englanders, on the other hand, were obliged
to continue as they had begun. They were compelled
to devote themselves to the sea more and more or starve.
The difficulties with the Indians never ceased, and be-
fore long the alliance of the French and Indians made
the danger continuous down almost to the time of the
Revolution. Town life Wcis therefore a necessity, both
for safety and for trade.
As the Massachusetts people advanced into the inte-
rior they moved by towns, for the same reasons and
338
Dutch Sources
with the same caution that they had established towns
on the sea-coast The town Weis usually set on a hill-
top, or on high land. The people went out from it to
cultivate their lots, and there was a law that no dwelling
in any new plantation should be situated more than a
mile from the meeting-house. (Palfrey's " New Eng-
land," vol. i. p. 434.)
The advancement of the town system into the inte-
rior, of course, gave some protection to the sea-coast
towns against the Indians, but they continued in their
self-governing character because the other conditions
remained unchanged and the people were all engaged
in trade, commerce, and ship-building. Their agri-
cultural interests were slight, and, from the nature of
the soil and climate, incapable of being much enlarged.
But commerce, ship-building, and the carrying trade
of the world were capable of indefinite expansion, and
to these the people devoted their utmost energies, with
the result we all know.
That whatever people lived in New England would
necessarily be merchants, fishermen, and ship-owners,
and therefore townsmen, was clearly foreseen in the
earliest times, and the reasons for the origin of the
towns which I have advanced receive very strong sup-
port from a pamphlet issued in 1622 by the Council for
New England, entitled "A Brief Relation of the Dis-
covery and Plantation of New England."
This Council was a company chartered by the Crown,
and its full title was "The Council Established at
Plymouth, in the County of Devon, for the Planting,
Ordering, Ruling, and Governing of New England in
339
Evolution of the Constitution
America." The Plymouth colony of the Pilgrim Fathers
was within its domain, and obtained from it a patent for
its land. The Council intended to manage its great
domain of New England for profit and the glory and
extension of the British Empire, and the pamphlet was
intended to describe the country and encourage settlers.
It begins with an account of the many voyages of dis-
covery sent out under the auspices of the Council ; then
follows a description of the climate, animals, and vari-
ous products, and the last chapter tells of the sort of
government the Council intends to enforce. Beginning
with praise of monarchical forms, the chapter goes on to
show how the people will nevertheless have full repre-
sentation in making laws. And then comes the follow-
ing paragraph :
"And there is no less care to be taken for the trade and pub-
lique commerce of merchants whose government ought to be
within themselves, in respect of the several occasions arising be-
tween them, the tradesmen and other the Mechanicks, with whom
they have most to do ; and who are generally the chief inhab-
itants of great cities, and towns, in all parts ; it is likewise pro-
vided, that all the cities in that territory, and other inferior towns
where tradesmen are in any numbers, shall be incorporated and
made bodies politique, to govern their affairs and people as it shall
be found most behoveful for the publique good of the same ; ac-
cording unto the greatness or capacity of them, who shall be
made likewise capable to send certain their deputies, or Burgesses
to this publique assembly, as members thereof, and who shall
have voices equal with any of the rest."
It seems to me that this passage settles the question
beyond any reasonable doubt Here we have a council
of persons, many of them noblemen, all of them living
340
Dutch Sources
in England, in no way connected with Holland, and yet
before the New England town system had come into
existence they recommended self-governing towns and
town representation as part of the government of the
country. They give their reasons for it Merchants and
traders must necessarily live in towns, and not only ought
they to be allowed to rule themselves in their own local
affairs, but their towns should have representation as
towns in the legislative assembly of the country.
The passage, it will be observed, recommends two
essentials, which afterwards became the characteristic
features of the New England town system, — namely,
that the towns should be independent, and that they
should be represented as towns in the legislature.
If any one has a fancy for fixing upon any one passage
or place as the origin of the New England towns, there
it is. But I do not like that way of putting it The
New England towns originated in the necessities and
circumstances of the country, — necessities and circum-
stances which the Council, the settlers, and every one
saw who became familiar with the land ; and it cannot
be said that any one man or set of men had the honor
of the invention.
The Council of New England saw that the colonists
would of course be traders and fishermen, dealing in
ships, fish, lumber, and furs ; agriculture would be of
little importance ; and the principal part of the people
would live in towns on the sea-coast, some of them large
towns ; and many of the people would become great
merchants. They not only knew this, but they were
aware that every one else who thought of going to New
341
Evolution of the Constitution
England knew it ; and unless they made the govern-
ment of the country attractive to this merchant class
and gave them special privileges, they would not go.
There was nothing new in a town governing itself and
becoming a political entity of more or less local inde-
pendence. The idea is a simple and natural one, spring-
ing up instantly when circumstances suggest it as valu-
able to accompHsh a result History is full of instances,
— the Greek towns, Rome, the free cities of the Middle
Ages, as well as the towns of Holland. But the Council
of New England needed no assistance from such sources
any more than did the captains and sailors who visited
the New England coast and saw and reported the evi-
dent and only way of settling and living upon it
When we look into the history of the Massachusetts
laws relating to the towns we find that the towns existed
before any laws were made about them. They sprang
up naturally, instantly, and spontaneously wherever a
company of settlers pitched upon a tract of land as suit-
able for their purpose.
Palfrey, in his history of New England, gives us the
history of the laws very clearly. The first record is in
1630, when Boston, Charlestown, and Watertown were
given their names. The next year each town is required
to provide its inhabitants with arms, — a significant re-
quirement in view of the circumstances already men-
tioned. In 1635 th^ general court, after saying that
" particular towns have many things which concern only
themselves," goes on to regulate them in some general
matters. In Charlestown it was found that there was
"great trouble and charge of the inhabitants by reason
342
Dutch Sources
of the frequent meeting of the townsmen in general,"
and because a large body in mass-meeting could not
properly transact numerous details ; and so it was de-
cided to appoint eleven men to attend to the town's
affairs. Other towns, as they grew large, adopted the
same plan, and the men chosen for this purpose became
gradually known as the selectmen.
By the year 1635 the town system was settled and
established, and any one who wishes to prove a Dutch
influence must prove it to have been at work before that
year, — that is, between the years 1620 and 1635. But
there is nothing in the laws or in any other contempora-
neous document to show the slightest trace of Dutch
feeling. In fact, every step of the development, so far
as it can be traced, has all the characteristics of an in-
digenous growth.
The discussion of the subject would, however, be in-
complete without a further consideration of some of
Mr. Campbell's arguments. He is not satisfied with the
Dutch influence which he supposes was so strong among
the people of the Plymouth colony, but attempts to show
that the Puritans, who came afterwards and settled in
the neighborhood of Boston, were also under that in-
fluence.
These Puritans came direct from England and had
never been in Holland. They were numerous, powerful,
and rapidly filled the country, and there is not a scrap of
writing by any one of them to show that they admired
Dutch methods or were affected by Dutch influence.
But this is a mere trifle for Mr. Campbell, and a few of
his clever sentences dispose of it :
343
Evolution of the Constitution
•• Most of the men who founded this colony emigrated from the
eastern and southern counties of England, in which, as we have
seen, Cromwell raised his army ; the counties in which a hundred
thousand Netherland refugees had taken up their residence half
a century before, and which always had the most intimate rela-
tions with the Dutch Republic. All of these men were acquainted
with Netherland institutions. Some of them, we know, had
passed years in Holland. Governor Dudley, for example, had
been a soldier in the Dutch army. The famous clergyman, Hugh
Peters, presided over a congregation at Rotterdam from 1623 to
1635, ^^^ there were doubtless many others among the rank and
file unknown to history who had also lived in that asylum of the
persecuted."
This is one of the most charming passages in his book,
and, for the boldness and at the same time subtlety of
its assumptions, can hardly be equalled in all literature.
"Most of the men," he says, "who founded this colony
came from the eastern and southern counties of Eng-
land." That is very likely. A glance at the map shows
that this delightfully vague phrase, "the eastern and
southern counties," includes fully half of England. In
the north England is very narrow, but in the south it
spreads out very wide. A majority of the people have
always lived in the south of it, and London itself has
always been in the southern and eastern counties. In
other words, Mr. Campbell says that the Massachusetts
Puritans came from those parts of England where the
majority of the English people lived ; and I suppose it
is not worth while to dispute this assertion.
His next assertion is that fifty years before a hundred
thousand Netherlanders had taken refuge in those " east-
ern and southern counties." Well, suppose they had,
where is the proof that they infected with their ideas the
344
Dutch Sources
particular Puritans that came to Massachusetts ? Why
should they have infected them ? They were refugees
from their own country because it had become too hot
to hold them, and why should they have made a special
point of introducing its institutions ? How was it that
they infected the particular persons who came to Massa-
chusetts, and not the rest of the English people who
stayed at home ?
As in the absence of direct evidence the whole ques-
tion is one of assumption only, is it not equally reason-
able to assume that a hundred thousand Netherland
refugees, scattered through the wide extent of the
eastern and southern counties among millions of the
hard-headed, insular English people, would have not the
slightest influence ?
Next, he says that these counties "always had the
most intimate relations with the Dutch Republic." But
what does this vague expression mean ? " Most inti-
mate relations" could hardly have existed between those
counties and the Netherlands without England becoming
all Dutch or Holland becoming all English. If Mr.
Campbell could show that the particular persons who
migrated from those counties to Massachusetts had been
in Holland or had intimate relations with Holland, what-
ever that may mean, he might advance his cause. But
he makes no such attempt ; and his wild assertion that
all eastern and southern England was most intimate
with Holland, and that any one who came from those
parts of England would necessarily establish Dutch in-
stitutions wherever he went, is a mere trap for the unwary.
Again, he says "ail of these men were acquainted
345
Evolution of the Constitution
with Netherland institutions." Hardly all of them ; for
all sorts and conditions were to be found among the
Puritans. He probably means that the leaders and men
of education were acquainted with Netherland laws and
government. In this sense we can readily admit his
assertion, and add to it that they were also well ac-
quainted with the institutions of antiquity, Greek, Ro-
man, and Jewish, and also with the laws and methods
of government of France, Spain, and possibly Central
Asia and Upper India. Men in all ages and in all na-
tions have often been well acquainted with the laws and
usages of other countries. Such an assertion, in the
absence of direct, positive evidence of imitation, proves
nothing.
But the best comes last "Some of them," he says,
"we know, had passed years in Holland ;" and then he
goes on to mention two, — Dudley and Hugh Peters.
Now, Peters did not reach the colony until 1635, and
by that time the town system was firmly established ; so
he could not have had anything to do with it ; and, as
he remained in the colony only six years, his after-influ-
ence could not have been very great So it comes to
this, that after asserting that " some of them had passed
years in Holland," he has one person to make his as-
sertion good, — one out of more than ten thousand.
Dudley had a great task in converting that remnant ;
and if he really performed it, all the other great men of
the earth should sink into insignificance.
But Mr. Campbell is always equal to any emergency,
and, after giving his two solitary instances, he adds,
" and there were doubtless many others among the rank
346
Dutch Sources
and file unknown to history who had also lived in that
asylum of the persecuted." Could anything be more
complete than this ? The less evidence you have, and
the more utterly ignorant you are of the existence of a
fact, the more surely you can prove it. Just confess
your ignorance, offer no proof whatever, and add, " but
there were doubtless" — whatever you want.
Wishing to be entirely candid with Mr. Campbell,
I have looked all through Winthrop's journal to see
if I could find any support for this " doubtless there
were others," and I succeeded in finding one person,
Captain David Patrick, who had served in the Dutch
army. As he came out with Winthrop and the first
settlers, he will replace Hugh Peters, and Mr. Campbell
will still have two persons to introduce Dutch influence.
Patrick had been brought out to help drill the militia,
and even if he did not establish the town system it
would, I should think, be open to Mr. Campbell to as-
sert that "possibly," or "probably," or "doubtless," he
introduced the Dutch military system, which would, of
course, spread from Massachusetts to the whole United
States. This would explain at once the wonderful suc-
cess of the Continental army in the Revolution. Tren-
ton, Saratoga, and Yorktown would no longer be mys-
terious successes ; and, as Patrick introduced his system
in the North, we could the more easily understand the
triumph of the North over the South in the civil war.
Patrick, however, was not congenial to the Puri-
tans. They could not altogether approve of his morals ;
and after many difficulties, and becoming " proud and
vicious," as Winthrop tells us, he fled to the Dutch at
547
Evolution of the Constitution
New York, where he was murdered by one of those
hberal people. (Winthrop's " New England," vol. ii. p.
151.)
Mr. Campbell's book gives the impression that the
Plymouth people were very much enamoured of Hol-
land, and if this were so it might help out his pre-
sumptions and inferences. But let us see what Bradford
says on this point.
He begins his history by telling us that his people
were very unwilling to leave England. They were per-
secuted for their religion ; but they would have re-
mained if they could. Like many others, they loved
their country none the less because they were perse-
cuted. What they desired was to convert their country
to their own way of thinking. They believed that their
religion was the true English religion.
"But to go into a country they knew not (but by hearsay),
where they must learn a new language, and get their living they
knew not how, it being a dear place, and subject to the miseries
of war, it was by many thought an adventure almost desperate,
a case intolerable, and a misery worse than death." (Mass. Hist.
Col., 4th series, vol. iii. p. 11.)
Arrived in Holland, they had religious liberty, it is
true, but in other respects they did not prosper. They
were ground down by the most wretched poverty, and
such was the " hardness of the place and country" that
their friends in England would not join them. That is
to say, the English dissenters and Puritans, who were
bitterly persecuted in England, preferred to remain in
their own country and endure the persecution rather
348
Dutch Sources
than subject themselves to the miseries and privations
of Holland.
This does not comport very well with the impression
we gather from Mr. Campbell's book, that the whole
mass of English dissenters not only knew all about Hol-
land, but admired its methods and customs, and were
running to and fro all the time and on " the most inti-
mate relations." When we come down to actual evi-
dence on the subject, those who knew all about the
Netherlands were not so very well pleased with what
they knew, and those who really were on "the most
intimate relations' ' with that country were very glad to
get away from it.
"In the agitation of their thoughts, and much discourse of
things here about, at length they began to incline to this conclu-
sion, of removal to some other place. Not out of any new-fan-
gledness, or other such like giddy humor, by which men are
oftentimes transported to their great hurt and danger, but for
sundry weighty and solid reasons ; some of the chief of which I
will here briefly touch. And first, they saw and found by expe-
rience the hardness of the place and country to be such, as few
in comparison would come to them, and fewer that would bide it
out, and continue with them. For many that came to them, and
many more that desired to be with them, could not endure that
great labor and hard fare, with other inconveniences which they
underwent and were contented with.
*******
"Yea, some preferred and chose the prisons in England, rather
than this liberty in Holland, with these afflictions. But it was
thought that if a better and easier place of living could be had, it
would draw many, and take away these discouragements. Yea,
their pastor would often say, that many of those who both wrote
and preached now against them, if they were in a place where
349
Evolution of the Constitution
they might have liberty and live comfortably, they would then
practise as they did.
* It * * * * *
"And therefore according to the divine proverb that a wise
man seeth the plague when it cometh, and hideth himself, Prov.
22, 3, so they like skilful and beaten soldiers were fearful either
to be entrapped or surrounded by their enemies, so as they should
neither be able to fight nor fly ; and therefore thought it better
to dislodge betimes to some place of better advantage and less
danger, if any such could be found.
*****■»«
" For many of their children that were of the best dispositions
and gracious inclinations having learned to bear the yoke in their
youth and willing to bear part of their parents' burden, were often
times, so oppressed with their heavy labors, that though their
minds were free and willing, yet their bodies bowed under the
weight of the same, and became decrepid in their early youth ;
the vigor of nature being consumed in the very bud as it were.
But that which was more lamentable, and of all sorrows most
heavy to be borne, was that many of their children, by these oc-
casions and the great licentiousness of youth in that country and
the manifold temptations of the place, were drawn away by evil
examples into extravagant and dangerous courses So
that they saw their posterity would be in danger to degenerate
and be corrupted They lived here but as men in exile
and in poor condition."
These passages, it seems to me, make the situation
very clear. The great mass of the English dissenters,
though persecuted and unable to make England alto-
gether the country they wished it to be, preferred
nevertheless to remain and endure these evils and wait
for better times, like the sturdy hearts of oak they were.
A small company of them, however, after many mis-
givings, went to try life in Holland ; and, though they
3SO
Dutch Sources
were not persecuted, their experiment was in other re-
spects a failure.
What they wanted was England without persecution ;
and they decided that the way to realize that ideal as
nearly as possible was to go out on some of the wil-
derness land that belonged to England on the North
American continent. They could have gone to one
of the Dutch possessions, and were strongly urged to
do it Indeed, it would have been easier and more
profitable for them. But they preferred the harder way
beneath the English flag.
Besides Bradford, there is another excellent authority
on these points, — Edward Winslow, who had been in
Holland, and who came out on the Mayflower with the
Pilgrims, and was afterwards their governor. Among
his writings there is a pamphlet called "A Brief
Narrative," in which he gives the reasons for leaving
Holland so clearly and to the point that comment is
unnecessary :
' ' But our reverend pastor, Mr. John Robinson, of late mem-
ory, and our grave elder, Mr. William Brewster (now at rest with
the Lord,) considering, amongst many other inconveniences, how
hard the country was where we lived, how many spent their estate
in it, and were forced to return for England, how grievous to live
from under the protection of the State of England, how like we
were to lose our language and our name of English, how little
good we did or were like to do to the Dutch in reforming the
sabbath, how unable there to give such education to our children
as we ourselves had received, etc., they, I say, out of their Chris-
tian care of the flock of Christ committed to them, conceived, if
God would be pleased to discover some place to us (though in
America) and give us so much favor with the King and State of
351
Evolution of the Constitution
England as to have their protection there, where we might enjoy
the like liberty, and where, the Lord favoring our endeavors by
his blessing, we might exemplarily show our tender countrymen
by our example, no less burdened than ourselves, where they
might live and comfortably subsist, and enjoy the like liberties
with us, being freed from anti-christian bondage, keep their name
and nation, and not only be a means to enlarge the dominions
of our State, but the church of Christ also, if the Lord have a
people amongst the nations whither he should bring us etc. here-
by in their great wisdoms they thought we might more glorify
God, do more good to our country, better provide for our pos-
terity, and live to be more refreshed by our labors, than ever we
could do in Holland, where we were." (Young's "Chronicles
of the Pilgrim Fathers," p, 381.)
For many years after the Plymouth people were set-
tled in Massachusetts the Dutch occupied the country
about two hundred miles southwest of them, at New
York. Dutch vessels were frequently working their
way through Long Island Sound and up the Connecti-
cut River, exploring the country with the hope of an-
nexing it. They were very pleasant and friendly towards
the Plymouth people, with a view of including them
within the settlement at New York and having the
whole of New England as a part of the Dutch colony.
But we find that Bradford and his people withstood
them, and distinctly warned the Dutch governor not to
trespass within the bounds of New England. Winslow
even went so far as to present a petition to the Lords
Commissioners for Plantations in England asking for
authority to resist the encroachments of both the Dutch
and the French. (Mass. Hist Coll., 4th series, vol. iii.
p. 225, note, p. 328.)
As to the Puritans at Boston, they also had no par-
352
Dutch Sources
ticular liking for the Dutch at New York, and there
are a number of passages in Winthrop's journal that
show it. Judging from these, the Puritans had no sym-
pathy with the Dutch religion, and regarded the Dutch
colony merely as a place to which their heretics and
exiles fled. A man or woman who was not moral
enough or orthodox enough to live in Massachusetts
went to the Hollanders at New York :
' ' They lay windbound sometime at Aquiday ; then as they
passed Hellgate between Long Island and the Dutch, their pinnace
was bilged upon the rocks, so as she was near foundered before
they could run on next shore. The Dutch governor gave them
slender entertainment ; but Mr. AUerton of New Haven, being
there, took great pains and care for them." (Winthrop's " New
England," Savage's edition, vol. ii. p. 96.)
" The lady Moodye, a wise and anciently religious woman,
being taken with the error of denying baptism to infants, was
dealt withal by many of the elders and others, and admonished
by the church of Salem (whereof she was a member) but persist-
ing still and to avoid further trouble etc. she removed to the
Dutch against the advice of all her friends. Many others, in-
fected with anabaptism, removed thither also, she was after ex-
communicated." {Id., p. 123.)
" These people" (Mrs. Hutchinson and some others who had
been banished for heresy) " had cast off ordinances and churches,
and now at last their own people, and for larger accommodation
had subjected themselves to the Dutch." (/</., p. 136.)
"Other affairs were transacted by the commissioners of the
United Colonies {i.e., the New England Union of 1643) as writing
letters to the Swedish Governor in Delaware River, concerning
foul injuries offered by him to Mr. Lamberton and those people
from New Haven who had planted there, and also to the Dutch
Governor about the injuries his agent there had also offered and
done to them as burning down their trading house, joining with
the Swedes against them, etc." {Id., p. 140.)
•3 353
Evolution of the Constitution
' ' The United Colonies having made strict orders to restrain
all trade of powder and guns to the Indians, by occasion whereof
the greatest part of the beaver trade was drawn to the French
and Dutch, by whom the Indians were constantly furnished with
those things, though they also made profession of like restraint,
but connived at the practice, so as our means of returns for Eng-
lish commodities were grown very short." {Id., p. 311. See also
pp. 314, 315. 324, 327-)
"About this time we had intelligence of an observable hand
of God against the Dutch at New Netherlands, which though it
were sadly to be lamented in regard of the calamity, yet there
appeared in it so much of God in favor to his poor people here,
and displeasure towards such as have opposed and injured them,
as is not to be passed by without due observation and acknowledg-
ment." {Id., p. 316.)
The last quotation refers to the drowning of sixty
Dutchmen in a shipwreck, among whom was Kieft,
who had once been governor at New York. Other pas-
sages of similar import might be cited, but it is needless
to multiply them.
The next source of Dutch influence after Massachusetts
was, Mr. Campbell tells us, in New York. Of course,
every one knows that the Dutch were there for about forty
years before the English conquest, and when the asser-
tion is made that these Dutch had the town system, free-
dom of religion and of the press, recording of deeds,
equal inheritance of land, and various other valuable
customs, most persons are ready to infer that these
things spread thence to the whole United States.
But let us examine these assertions, which are made in
Mr. Campbell's usual liberal manner, without citing any
authority whatever. The Dutch had towns, of course.
People have had towns everywhere, and, as the Dutch
354
Dutch Sources
at New York were principally traders and the Indians
were very hostile, it was absolutely necessary that they
should live in towns and have them fortified. But were
these towns self-governing, and did they send representa-
tives to the legislature, after the manner of the Massa-
chusetts system? The most superficial glance at the
history of New York shows that the Dutch towns never
sent representatives to the legislature, for the very good
reason that during the Dutch dominion there was no
legislature in the colony.
This is the first check one receives after reading Mr.
Campbell's extravagant eulogies. The Dutch, the au-
thors of all our American liberty and institutions, had
not, it seems, progressed so far among themselves as to
have representative government in their own colony.
Now the English colonies — those that were owned by
feudal proprietors as well as those whose charters were
granted by kings — had representative government from
the beginning. But in Dutch New York it was not
established, and could not be established, although the
people rebelled and clamored for it
There was no self-government in the Dutch colony at
large, and no self-government in the towns. These towns
were mere ordinary towns, and had none of the pecuHar
characteristics of the New England system. In some of
these Dutch towns on Long Island English people from
New England had settled, and they demanded local
self-government for themselves. It was granted to pacify
them and avoid offence to New England :
" It is a suggestive fact that the first town court erected by the
Dutch was one for the benefit of the English residents of Hemp-
355
Evolution of the Constitution
stead, Long Island, a place then within New Netherland. In
1644 Kieft granted land to Robert Fordham, John Strickland, and
other persons of English origin, then in allegiance to the States-
General, with corporate powers including the right to nominate
magistrates for the governor's selection, and to establish laws by
ordinances with the consent of the inhabitants. ... So extraordi-
nary a grant of self-government at this early period was intended
to placate the border English." (Fowler's " Introduction to Laws
and Acts of New York." Published by Grolier Club, p. 23.)
The Dutch notion of municipal government was, as
Bancroft puts it (History of the United States, vol. ii. p.
305, ed. 1 846), that " the city had privileges, not the citi-
zens." Citizenship was a mere commercial privilege,
not a political enfranchisement The Dutch in New
York learned all they knew of the self-government of
towns from the New Englanders. Indeed, so far as
they learned any lessons at all in liberty they came from
the same source. When the people on one occasion
clamored for representative government they were in-
cited by New England influence, and Stuyvesant, the
governor, in rebuking them, said : "Will you set your
names to the visionary notions of the New England
men?" (Bancroft, vol. ii. pp. 306, 307.)
He was supported in his rebuke by the West India
Company, which declared that the demand for repre-
sentation Wcis " contrary to the maxims of every enlight-
ened government Have no regard to the consent of
the people, and let them no longer indulge the visionary
dream that taxes can be imposed only with their con-
sent" These New York Dutch were so far from intro-
ducing into America any liberty of their own that they
were planning to copy English liberty and were listening
356
Dutch Sources
complacently to proposals of submitting themselves to
English jurisdiction. All this is commonplace New
York history, which Mr. Campbell could Ccisily have
discovered.
Mr. Campbell has much to say about freedom of
religion and the absence of an established church in
America, and much abuse for the English established
church and English persecution. We cannot possibly,
he says, have derived our religious liberty and separa-
tion of church and state from Great Britain. It must
have been introduced among us by the Dutch. Possi-
bly so. But O'Callaghan's volume of the Dutch laws
and ordinances in New York does not give one that
impression :
"Whereas we daily find that many vagabonds, Quakers and
other Fugitives are, without the previous knowledge and consent
of the Director General and council, conveyed, brought and
landed in this government, and sojourn and remain in the re-
spective villages of this Province, without those bringing them
giving notice thereof, or such persons addressing themselves to
the government and showing whence they come, as they ought
to do, or that they have taken the oath of fidelity the same as
other inhabitants ; the Director General and Council, therefore,
do hereby order and command all skippers, sloop captains and
others, whomsoever they may be, not to convey, or bring, much
less to land within this government, any such vagabonds, Quakers
and other Fugitives, whether men or women, unless they have
first addressed themselves to the government, have given informa-
tion thereof and asked and obtained consent, on pain &c." (O'Cal-
laghan's " Laws and Ordinances of New Netherland," p. 439.)
" The sheriff and Magistrates shall, each in his quality, take
care that the Reformed Christian Religion be maintained in con-
formity to the Synod of Dordrecht, without permitting any other
sects attempting anything contrary thereto." {^d., p. 476.)
357
Evolution of the Constitution
Under these Hberal Dutchmen in New York, Roman
Catholics, Baptists, Quakers, and Jews were ostracized
and refused the right to hold public worship. The
Lutherans, after a struggle, secured a minister for them-
selves, and the English Presbyterians and Congregation-
alists were allowed their ministers because it was impor-
tant to please them. Whatever religious liberty existed
in New York was due to the English and the Lutherans,
and not to the Dutch. (O'Callaghan's Laws, etc., vi.)
The truth is that the Dutch rule in New York was a
stifling monopoly of the most arbitrary kind. The land
was granted in large fiefs to patroons with the intention
of creating a privileged class and aristocracy. Stuy-
vesant undertook to enforce religious uniformity and
relentlessly persecuted the Lutherans and the Quakers,
and, as a matter of fact, religious liberty was established
in the colony when the English took it in 1 664. At
the same time representative government appeared.
Mr. Campbell seems to think that fair and honorable
treatment of the Indians was a Dutch idea. If it was,
the Indians were very ungrateful, for they slaughtered
the Dutch without mercy. Every town and village had
to be fortified, and at times they almost chased the
Dutchmen out of the country. There was one episode
in particular which shows the Dutch idea of honor, and,
as it is given very concisely by Mr. Lodge in his his-
tory of the colonies, I shall quote his words :
"The Mohawks, armed by the Dutch, swept down from the
north, driving the river tribes before them. The fugitives sought
refuge in the Dutch settlement and were well received, especially
by De Vries, who sought to give them every protection ; but the
358
Dutch Sources
helpless condition of his former enemies only aroused Kieft to
fury. Two or three of the 'twelve,' who had been dissolved,
met and presented a petition to the governor that the Indians
should be attacked. . . . The wretched fugitives, surprised by
their supposed protectors, were butchered in the dead of a winter
night without mercy ; and the bloody soldiers returned in the
morning to Manhattan, where they were warmly welcomed by
Kieft." (Lodge's "History of the Colonies," p. 289.)
In fact, the Dutch rule in New York was so illiberal
and impolitic that settlers were kept away from the
colony, and it never flourished. It was founded about
the same time as New England, and had greater ad-
vantages and resources ; but in 1664, when it was sur-
rendered to the English, it had only seven thousand
inhabitants against over a hundred thousand in New
England.
The last place where the Dutch influence is supposed
to have entered was Pennsylvania ; but Mr. Campbell's
argument on this point is scattered in many parts of his
book. In the chapter on the Scotch-Irish he says (vol.
ii. p. 470) that Pennsylvania and Delaware had a large
Dutch population ; and this absolutely untrue statement
is one of those which appear all through the work, and
gradually give the ordinary reader an impression favor-
able to the author's argument
There never was a large Dutch population either in
Delaware or in Pennsylvania. The Dutch had a few
trading stations on the Delaware River and Bay at the
same time that they occupied New York ; but they
never settled the country, or even attempted to settle it
The Swedes came and far outnumbered the Dutch ;
then the English came when they captured New York ;
359
Evolution of the Constitution
and at the time Penn and the Quakers arrived, in 1682,
all the Dutch, Swedes, and English living on the whole
length of the river were less than three thousand. Most
of these were Swedes and English, and the Dutch
amounted to nothing. They established no institutions
of any kind ; for any customs they or the Swedes had
on the Delaware were swept out of existence by the
English and the country put under English law.
Besides this make-weight assertion, Mr. Campbell says
that Penn had travelled considerably in Holland, that
his mother was a Dutchwoman, and that the Quakers
resembled in doctrine the Mennonites of Holland.
Now, it is undoubtedly true that Penn had travelled
in Holland. He had travelled, however, much more
in Germany He and his Quakers encouraged all the
German peace sects that resembled the Quakers in re-
ligion to come to Pennsylvania, but none came from
Holland except a few scattered individuals.
A large number of Germans, however, came ; but
they established no German form of government as part
of the constitution of Pennsylvania, and no one has ever
asserted that they did. This goes to show that the
presence in a country of a large body of foreigners does
not necessarily lead to the establishment of the institu-
tions of the country from which the foreigners come.
If Penn was so familiar with Holland, and if people
always imitate the foreign country with which they are
familiar, we should expect to find a great deal that is
Dutch in Pennsylvania. In fact, Pennsylvania seems to
be a much better place for Mr. Campbell to introduce
his Netherland influence than New England. But the
360
Dutch Sources
first thing that strikes us is that Penn did not intro-
duce, nor attempt to introduce, the New England town
system, or any system of towns like that in Holland,
On the contrary, he introduced the English county sys-
tem. In after-years the township system was partly
introduced as the result of experience and convenience,
so that Pennsylvania has a cross between the two, be-
cause the nature of the land, climate, and civilization
makes the combination the best method, as the county
alone is the best method farther south and the town
alone farther north. So in this important instance Penn
and his people adopted what seemed most suited to
their circumstances, and were not looking over the world
for something to imitate.
Let us go a step farther. Penn's agent in Holland
was Benjamin Furly, an Englishman from Colchester,
who at the age of twenty-five went to Holland and
in the course of years became a rich and prosperous
merchant at Rotterdam. He was a patron of letters, a
collector of rare books, a writer of some little celebrity,
and very much interested in the Quakers. His house
was the resort of learned and distinguished men, and
he was a great friend of the philosopher Locke. He
interested himself to get German immigrants for Penn's
colony, and Penn consulted him on all sorts of matters.
He consulted him about the best sort of constitution
for Pennsylvania, and prepared one which contained a
good many Dutch ideas, no doubt suggested by Furly.
If this constitution had been adopted it would have been
a strong point for Mr, Campbell. But it was rejected
and abandoned by Penn himself, and in the place of it
361
Evolution of the Constitution
he prepared another which was adopted ; and this also
he submitted to Furly. We have Furly's criticisms on
it, complaining, in rather strong language, that Penn
had repudiated all his Dutch suggestions, and hinting
that no good would come of it
These criticisms of Furly's and the whole subject of
his influence over Penn have been recently very care-
fully investigated by Mr. Julius Sachse in the Pennsyl-
vania Magazine of History (vol. xix. p. 277). Penn
resisted and rejected the Dutch influence, and all that
Furly could persuade him to put in his constitution was
a clause allowing the alien Germans greater privileges
than were accorded to them in the other colonies.
Furly himself had an opinion about the liberality of
Holland which is worth quoting. Among the people
who called upon him to see his rare books and hear his
opinions on various subjects was Zacharias von Uffen-
bach, who has left us in his memoirs an account of the
visit :
"When I reminded him that in Holland Religious liberty
prevailed, he denied emphatically that this assumption was true,
and he became quite excited over the procedure of the local magis-
trates against the so-called English New-prophets.
" He admitted that he not only harbored their tenets, and had
printed their writings with a preface of his own, but had defended
them as well before the Magistrates and endeavored to shield and
protect them, yet notwithstanding all his efforts these innocent
people had been expelled from the country." (Penna. Mag. of
History, vol. xix. p. 294.)
So, after all, there was not in Holland that absolute
and complete religious liberty which Mr. Campbell
would have us suppose^ and which, he says, was copied
36a
Dutch Sources
in AmericcL There was, no doubt, more freedom in
Holland in this respect than in some other countries of
Europe. They were all working at the problem, each
in its own way. Religious liberty was gradually devel-
oping in England, and there was a strong party there in
its favor ; Voltaire and his friends were fighting for it in
France ; and the Mennonites, Baptists, and other sects
were its ardent advocates in Germany. Holland had
rather more of it than some countries, partly because
she found that toleration increased her population and
commerce.
Each country's struggle for the great principle was
encouraged by any success it attained in other nations.
Its success in Holland helped its success in England,
and what was gained for it in England was an additional
encouragement in Holland, The sects that advocated
it in Germany had an influence on English thought, and
in the reign of Queen Anne, England, in her turn, helped
these struggling German sects by delivering more than
thirty thousand of them from persecution and settling
them in Ireland and America.
In New York, the Dutch, as we have seen, allowed
religious liberty to the New England Congregationalists
because they feared them, and to the Lutherans because
they demanded it ; but Jews, Roman Catholics, Baptists,
and Quakers they persecuted without mercy. In Hol-
land they granted freedom to many religions to which
they had no objection or which they thought it was
advisable to encourage, but against others which they
did not like they were very severe.
The only way by which the invention of religious
363
Evolution of the Constitution
liberty can be traced to one source is by fixing on a
favorite source and ignoring all the others. Religious
liberty sprang up all over Europe as the result of the
revival of learning, the invention of the printing-press,
and the progress of the Reformation. There was no
country that had not some measure of it, and in each
country there were sects, parties, and individuals that
had more of it and others that had less of it Of the
people who came from England to America, some, like
the Massachusetts Puritans, had none of it, and others,
like the Pennsylvania Quakers, had a great deal of it
Mr. Campbell's argument, that everything advanced
and liberal that the Quakers introduced into Pennsyl-
vania must have come from Holland, because the Hol-
land Mennonites were similar in doctrine to the Quakers,
is a mere assumption. The Mennonites were a sect as
numerous in Germany as in Holland, and many of these
German Mennonites settled in Pennsylvania by the en-
couragement of Penn and his people, but there were very
few Hollanders among them. The German Mennonites
were a peace sect, like the Quakers, and extremely liberal
in their views. They were part of a great movement
of religious thought which spread all over the Conti-
nent and England in the sixteenth and seventeenth cen-
turies, producing the Quakers and Baptists in England,
the Mennonites, Tunkers, Schwenkfelders, Pietists, and
a host of other small sects in Germany, and similar
sects in Holland, France, and Italy. In Italy the move-
ment gained such ascendency under the leadership of
Molinos, the Quietist, that it had to be stopped by the
severest measures of the Jesuits and the Inquisition.
364
Dutch Sources
It is impossible, therefore, to say that Penn and the
Pennsylvania Quakers obtained even their religious ideas
from Holland alone. In fact, if we start to trace their
origin on the Continent, we shall be utterly unable to
confine it to any one locality, except by Mr. Campbell's
convenient method of exclusion.
He gives instances of laws introduced by Penn which,
he says, were copied from Holland, and among these
the law requiring every child over the age of twelve to
be taught a trade, the law giving one-third of the estate
of a murderer to the next of kin of his victim, and
the law requiring that before marriage the parents or
guardians of the parties should be consulted.
In the case of the law requiring every child to learn a
trade the resemblance is very far-fetched. The law in
Pennsylvania applied to all children, rich and poor, and
was simply an attempt to enforce by statute a practice
the Quakers attempted to enforce by their church dis-
cipline, of teaching all their children some trade, no
matter what were their circumstances in life. But the
Holland law, as Mr. Campbell gives it, applied only to
the children who became a charge on the public because
their parents were too poor to support them (vol. ii. p.
465). There is, therefore, no real resemblance ; and
even if tliere was it would not avail Mr. Campbell, for
this law was never enforced in Pennsylvania, and has
not been adopted in the United States, and even the
Quakers themselves soon gave up all attempts to cany
it out by their discipline. So if this was an attempt to
introduce a Dutch law, it signally failed.
The law giving one-third of the estate of a murderer
365
Evolution of the Constitution
to the next of kin of his victim was somewhat like a law
of Holland compelling any one who caused the death of
another, even by negligence, to pay an annuity to the
widow and children. A lawyer would say that the two
were by no means alike. But, waiving that, this attempt
to introduce a Dutch law also failed. The law was not
continued in Pennsylvania, and has not been adopted by
the country at large.
The law requiring that before marriage the parents
and guardians of the parties should be consulted was
another failure. It was abandoned in Pennsylvania, and
is not a law of the United States.
In our whole investigation of this subject we have
been able to find only one custom introduced into this
country for which there is direct and positive evidence
of its Dutch origin. This was the custom of marriage
before a magistrate, to the exclusion of marriage by a
minister of religion, which, as we have shown, Bradford
says was taken from Holland by the Pilgrim Fathers.
It prevailed for a time in Massachusetts, but has never
been accepted by our people. The one instance, there-
fore, where there is positive proof of Dutch imitation
resulted in a failure to establish the imitation, and the
three other instances where there is slight or possible
evidence of imitation also resulted in failure to establish.
This comports with the general principle of my argu-
ment in this volume, that our institutions are the growth
of natural circumstances and conditions, and are not
plagiarisms. Institutions or laws purely exotic or purely
imitative usually fail.
Mr. Campbell's extension of the Dutch influence after
366
Dutch Sources
its establishment in New England, New York, and
Pennsylvania is most interesting. Our self-governing
States, he says, grew out of the Dutch self-governing
towns. He seems to forget that the colonies were all
self-governing, even those which, like Virginia, had
no township system whatever, and after the Revolution
each colony, both South and North, became a self-gov-
erning State. Indeed, the vigor with which State rights
and State sovereignty were maintained in the Southern
States, where Mr. Campbell says there was no Dutch
influence, would indicate that there may have been a
Netherland influence there which he has overlooked.
Connecticut, he says, was started by " a little detach-
ment from Plymouth, carrying Dutch ideas. . . . Some
of its members having doubtless lived in Holland, sailed
up the Connecticut River and established a settlement
at Windsor." (Vol. ii. p. 416.) Here is that "doubt-
less" again which he always uses when he has no evi-
dence for an assertion. Afterwards he is able to dis-
cover that, when other towns in Connecticut were settled,
there was one man among them, Thomas Hooker, who
had lived for a time in Holland. Accordingly, when
these Connecticut people drew up their fundamental
orders on a piece of paper it was the first American
written constitution ; and, as the Netherland Union of
Utrecht was in writing, it must have suggested this
Connecticut document, which afterwards, of course, sug-
gested the reducing to writing of the Constitution of the
United States.
He forgets that the Massachusetts charter, from which,
as we have shown, these fundamental orders of Con-
367
Evolution of the Constitution
necticut were taken, was also written on a piece of
paper or parchment, as was every other charter creating
an English colony in America. Whenever a form of
government, not having grown up by custom, has to
be put in force immediately, or, having grown up by
custom, has to be formulated for any purpose, it is
natural and even necessary to state it in writing. There
is nothing wonderful about it ; and most people who
can read and write have wit enough to do it
Our system of recording deeds and mortgages, which
Mr. Campbell mentions so often as copied from Hol-
land, might also have been copied from Egypt, where
he admits it once prevailed. But the colonists did not
have to go so far even as Holland to imitate it, because
certain deeds, called deeds of bargain and sale, were
recorded in England by the statute of Henry VIIL,
c. 1 6. Mr. Campbell seems to have been totally un-
aware of this. It may not have been mentioned in
Carnegie's "Triumphant Democracy," or in the maga-
zine articles he consulted, and he wastes pages and
pages of rhetoric on the importance of this gift from
Holland.
The recording of deeds is one of those convenient
devices which have been known from time immemorial.
No one nation can claim the credit of its invention, es-
pecially as it is a rather obvious method of accomplish-
ing certain results. But some nations have adopted it,
some have not, and some have adopted it only in part
The Pilgrim Fathers, who had lived in Holland, did not
introduce it in Massachusetts ; but the Puritans, who
had never lived in Holland, introduced it, and it was
368
Dutch Sources
introduced by the English proprietors of both East Jer-
sey and West Jersey in their frames of government
Along with the recording of deeds, Mr. Campbell has
much to say about the equal inheritance of land, which,
he insists, was introduced into this country from Hol-
land, as opposed to the system of primogeniture which
prevailed in England. In this matter also he wastes
many pages of rhetoric on the dreadful evils of primo-
geniture, which would be crippling and suffocating us
to-day if it had not been for Holland.
His mistake here is one which almost any law-student
could correct Before the Norman conquest there was
no primogeniture in England, and land descended to
children in equal proportions. The Normans intro-
duced the feudal system, and with it primogeniture,
which was absolutely essential to the military character
of that system. The old Saxon system of equal inherit-
ance, however, survived in the county of Kent ; and
most of the charters which created the English colonies
in America recited that the land should be held on the
same tenure as prevailed in " his Majesty's Manor of
East Greenwich and County of Kent" This was done
because the feudal land tenures and primogeniture
would be unsuited to a wilderness country, where there
was no aristocracy nor any of the conditions which
supported primogeniture in England.
In Massachusetts, where Mr. Campbell supposes the
Dutch influence was so strong, the land was expressly
held as " of East Greenwich" both in the Plymouth
colony and among the Puritans (Winthrop's " New Eng-
land," vol. ii. p. 301; Palfrey's " New England," p. 20);
«4 3<^
Evolution of the Constitution
and when New York was taken from the Dutch by the
English, this same tenure of " East Greenwich and the
County of Kent" was introduced.
It may be well, also, to say something of Mr. Camp-
bell's statement that the common- or free-school system
of New England was copied from Holland. The im-
portance of free schools has always been obvious, and
there were free schools in the Middle Ages. In the
Reformation they were recommended in several coun-
tries of Europe. Luther advocated them, and, with
Melanchthon, drew up the Saxon school system. They
were gradually developed in Germany up to 1618;
several German states had compulsory education laws,
and John Knox had urged their adoption in Scotland
in 1560.
In New England they were a gradual native growth.
The first schools were not free, but were kept up by the
people as best they could from contributions and pay-
ments for tuition. Even the famous law which directed
each township of fifty householders to have a school-
teacher provided that his " wages shall be paid by the
parents or masters of such children, or by the inhab-
itants in general by way of a supply." The Puritans
finally worked out a general free-school system because
they were enthusiastic believers in education and learn-
ing, and their religion was of a sort that required much
erudition and intellectual keenness. They established
the free schools in the same spirit which led them
to establish Harvard College. But if we are looking
for the first free school in America we shall find it in
1 62 1 at Charles City, Virginia, — a part of the country
370
Dutch Sources
which Mr. Campbell assures us was entirely free from
Dutch influence.
It would be useless to follow up all his extraordinary
statements of the effect of Dutch influence. They are
simply the ingenuity of a brilliant mind carried away
by a mere theory. But I shall call attention to one or
two points where he has attempted to show Dutch imi-
tation in the development of the Federal government.
Finding that in the States-General of the Netherlands
each province had only one vote, and that when the
Continental Congress assembled at the outbreak of the
Revolution each colony had only one vote, he says that
one was imitated from the other.
This question whether the colonies should each be
represented according to its population, or whether each
should have only one vote in any union that Wcis formed,
was, as we have shown in previous chapters, an old
problem that had been discussed in the plans of union
proposed previous to the Revolution and solved in dif-
ferent ways. The general opinion seems to have leaned
in favor of representation in proportion to population,
but every one felt that the statistics of population were
so inaccurate that it would be unsafe to adopt this plan.
When the Continental Congress first assembled in Phila-
delphia, in September, 1774, the subject was debated,
and John Adams gives the debate in his diary, with the
speeches of the different members. (Adams's Works,
vol. ii. p. 366.)
In the whole of this debate there is not a word about
the Netherlands. On the contrary, the general feeling
was evidently in favor of representation by population,
37*
Evolution of the Constitution
but it was thought impracticable to adopt it without
more accurate information. A resolution was finally
passed which gives the reason for allowing each colony
only a single vote, and it is certainly not Dutch :
"That in determining questions in this Congress each colony
or province shall have one vote ; the Congress not being pos-
sessed of, or at present able to procure proper materials for ascer-
taining the importance of each colony." ("Journals of Conti-
nental Congress," vol. i. p. lo.)
If there is anything in the Articles of Confederation or
the Constitution that was imitated from the Netherlands,
the debates would surely disclose it, and also the pam-
phlets that were published criticising the Constitution
when it was before the people for adoption. Mr. Camp-
bell makes no quotations from any of these original
authorities to support his assertions. He relies entirely
on possibilities and presumptions. I have accordingly
examined the debates and pamphlets, to see if there
was anything that would support him. I find that the
Netherlands are often referred to, and also Rome,
Greece, Denmark, Poland, Germany, Spain, England,
and Switzerland. The general tone is not one of imi-
tation, but rather of dislike and contempt for all Eu-
ropean institutions, and I can find nothing that recom-
mends plagiarism.
" Dr. Rush took notice that the decay of the liberties of the
Dutch Republic proceeded from three causes : i . The perfect
unanimity requisite on all occasions. 2. Their obligations to
consult their constituents. 3. Their voting by provinces. This
last destroyed the equality of representation, and the liberties of
Great Britain, also, are sinking from the same defect." (Elliot's
Debates, vol. i. p. 'jt.')
372
Dutch Sources
Voting by states or provinces was by no means a dis-
covery of the Dutch. Hopkins, who followed Dr. Rush,
reminded his hearers that voting by states was practised
in Germany and Switzerland as well as in Holland. If
the voting by colonies in the Articles of Confederation
was an imitation, from which country was it imitated ?
Wilson, the next member to speak, said, —
" The Germanic body is a burlesque on government, and their
practice on any point is a sufficient authority and proof that it is
wrong. The greatest imperfection in the constitution of the
Belgic confederacy is their voting by provinces." (Elliot's De-
bates, vol. i. p. 78.)
• ' Mr. Wilson urged the necessity of two branches ; observed
that if a proper model was not to be found in other confederacies
it was not to be wondered at. The number of them was small
and the duration of some at least short. The Amphictyonic and
Achaean were formed in the infancy of political science and appear
by their history and fate to have contained radical defects. The
Swiss and Belgic confederacies were held together not by any
vital principle of energy, but by the incumbent pressure of for-
midable neighboring nations. The German owed its continuance
to the influence of the house of Austria. He appealed to our
own experience for the defects of our confederacy." (Elliot's
Debates, Supplement, vol. v. p. 219.)
Mr. Pinckney. " The people of this country are not only very
different from the inhabitants of any state we are acquainted with
in the modern world, but I assert that their situation is distinct
from either the people of Greece or Rome, or of any states we are
acquainted with among the ancients. Can the orders introduced
by the institutions of Solon, can they be found in the United
States ? Can the military habits and manners of Sparta be re-
sembled to ours in habits and manners ? Are the distinctions of
patrician and plebeian known among us ? Can the Helvic or
Belgic confederacies, or can the unwieldy, unmeaning body
373
Evolution of the Constitution
called the Germanic empire, can they be said to possess the same,
or a situation like ours ?" i^Id., p. 236.)
Mr. Madison. " What is the state of things in the lax system
of the Dutch confederacy ? Holland contains about half the peo-
ple, supplies about half the money, and, by her influence, silently
and indirectly governs the whole republic." {Id., p. 252.)
Mr. Gouverneur Morris. "The United Netherlands are at
this time torn in factions. With these examples before our eyes
shall we form establishments which must necessarily produce the
same effects ?" {Id., p. 287.)
When the Constitution was referred to the people for
adoption, it was thought so unlike anything in Holland
or in any other country of Europe that some of its en-
emies complained of it There is an interesting passage
on this point in an able pamphlet of the time :
"The enemies of the proposed constitution have deemed it
material to show that such a one never existed before. It does
not, indeed, agree with definitions in books taken from the Am-
phictyonic Council, the United Netherlands, or the Helvic Body.
They would, therefore, infer that it is wrong. This mode of rea-
soning deserves not a serious refutation. The convention exam-
ined those several constitutions, if such they can be called. It
found them either woefully defective as to their own particular
object or inapplicable to ours. Peradventure our own Articles of
Confederation in theory appear more perfect than any of them."
(" Remarks on the Proposed Plan of a Federal Government,"
by Aristides, p, 13.)
374
APPENDIX
Constitution of the United States
We the People of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic Tranquility, pro-
vide for the common defence, promote the general Welfare, and
secure the Blessings of Liberty to ourselves and our Posterity, do
ordain and establish this Constitution for the United States of
America.
ARTICLE 1.
Section i. All legislative Powers herein granted shall be
vested in a Congress of the United States, which shall consist of
a Senate and House of Representatives.
Section 2. The House of Representatives shall be composed
of Members chosen ever)' second Year by the People of the sev-
eral States, and the Electors in each State shall have the QuaHfi-
cations requisite for Electors of the most numerous Branch of the
State Legislature.
No Person shall be a Representative who shall not have at-
tained to the Age of twenty-five Years, and been seven Years a
Citizen of the United States, and who shall not, when elected, be
an Inhabitant of that State in which he shall be chosen.
[Representatives and direct Taxes shall be apportioned among
the several States which may be included within this Union, ac-
cording to their respective Numbers, which shall be determined
by adding to the whole Number of Free persons, including those
bound to Service for a Term of Years, and excluding Indians not
taxed, three fifths of all other Persons.]* The actual Enumera-
tion shall be made within three Years after the first Meeting of
* The clause included within brackets has been altered by the Four-
teenth Amendment, section 2.
375
Evolution of the Constitution
the Congress of the United States, and within every subsequent
Term of ten Years, in such Manner as they shall by Law direct.
The Number of Representatives shall not exceed one for every
thirty Thousand, but each State shall have at Least one Repre-
sentative ; and until such enumeration shall be made, the State
of New Hampshire shall be entitled to chuse three, Massachusetts
eight, Rhode Island and Providence Plantations one, Connecticut
five. New York six, New Jersey four, Pennsylvania eight, Dela-
ware one, Maryland six, Virginia ten, North Carolina five. South
Carolina five, and Georgia three.
When vacancies happen in the Representation from any State,
the Executive Authority thereof shall issue Writs of Election to
fill such Vacancies.
The House of Representatives shall chuse their Speaker and
other Officers ; and shall have the sole Power of Impeachment.
Section 3. The Senate of the United States shall be composed
of two Senators from each State, chosen by the Legislature there-
of, for six Years ; and each Senator shall have one Vote.
Immediately after they shall be assembled in Consequence of
the first Election, they shall be divided as equally as may be into
three Classes. The seats of the Senators of the first Class shall
be vacated at the Expiration of the second year, of the second
Class at the Expiration of the fourth Year, and of the third Class
at the Expiration of the sixth Year, so that one-third may be
chosen every second Year ; and if Vacancies happen by Resig-
nation, or otherwise, during the Recess of the Legislature of any
State, the Executive thereof may make temporary Appointments
until the next Meeting of the Legislature, which shall then fill
such Vacancies.
No Person shall be a Senator who shall not have attained to
the Age of thirty Years, and been nine Years a Citizen of the
United States, and who shall not, when elected, be an Inhabitant
of that State for which he shall be chosen.
The Vice President of the United States shall be President of
the Senate, but shall have no Vote, unless they be equally
divided.
The Senate shall chuse their other Officers, and also a Presi-
376
Appendix
dent pro tempore, in the Absence of the Vice President, or when
he shall exercise the Office of President of the United States.
The Senate shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or Affirma-
tion. When the President of the United States is tried, the Chief
Justice shall preside : and no Person shall be convicted without
the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further
than to removal from Office, and disqualification to hold and en-
joy any Office of honor. Trust or Profit under the United States :
but the Party convicted shall nevertheless be liable and subject
to Indictment, Trial, Judgment and Punishment, according to
Law.
Section 4. The Times, Places and manner of holding Elec-
tions for Senators and Representatives, shall be prescribed in
each State by the Legislature thereof ; but the Congress may at
any time by Law make or alter such Regulations, except as to
the Places of chusing Senators.
The Congress shall assemble at least once in every Year, and
such Meeting shall be on the first Monday in December, unless
they shall by Law appoint a different Day.
Section 5. Each House shall be the Judge of the Elections,
Returns and Qualifications of its own Members, and a Majority
of each shall constitute a Quorum to do Business ; but a smaller
Number may adjourn from day to day, and may be authorized
to compel the Attendance of absent Members, in such Manner,
and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, pun-
ish its Members for disorderly Behaviour, and, with the Concur-
rence of two thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from
time to time publish the same, excepting such Parts as may in
their Judgment require Secrecy ; and the Yeas and Nays of the
Members of either House on any question shall, at the Desire of
one fifth of those present, be entered on the Journal.
Neither House, during the Session of Congress, shall, without
the Consent of the other, adjourn for more than three days, nor
377
Evolution of the Constitution
to any other Place than that in which the two Houses shall be
sitting.
Section 6. The Senators and Representatives shall receive a
Compensation for their services, to be ascertained by Law, and
paid out of the Treasury of the United States. They shall in all
Cases, except Treason, Felony and Breach of the Peace, be privi-
leged from Arrest during their Attendance at the Session of their
respective Houses, and in going to and returning from the same ;
and for any Speech or Debate in either House, they shall not be
questioned in any other Place.
No Senator or Representative shall, during the Time for which
he was elected, be appointed to any civil Office under the Au-
thority of the United States, which shall have been created, or the
Emoluments whereof shall have been encreased during such time ;
and no Person holding any Office under the United States, shall
be a Member of either House during his Continuance in Office.
Section 7. All bills for raising Revenue shall originate in the
House of Representatives ; but the Senate may propose or concur
with Amendments as on other Bills.
Every Bill which shall have passed the House of Represen-
tatives and the Senate, shall, before it become a Law, be pre-
sented to the President of the United States ; if he approve he
shall sign it, but if not he shall return it, with his Objections to
that House in which it shall have originated, who shall enter the
Objections at large on their Journal, and proceed to reconsider it.
If after such Reconsideration two thirds of that House shall agree
to pass the Bill, it shall be sent, together with the Objections, to
the other House, by which it shall likewise be reconsidered, and
if approved by two-thirds of that House, it shall become a Law.
But in all such Cases the Votes of both Houses shall be deter-
mined by yeas and Nays, and the Names of the Persons voting for
and against the Bill shall be entered on the Journal of each House
respectively. If any Bill shall not be returned by the President
within ten Days (Sundays excepted) after it shall have been pre-
sented to him, the Same shall be a Law, in like Manner as if he
had signed it, unless the Congress by their Adjournment prevent
its Return, in which Case it shall not be a Law.
37S
Appendix
Every Order, Resolution, or Vote to which the Concurrence of
the Senate and House of Representatives may be necessary (ex-
cept on a question of Adjournment) shall be presented to the
President of the United States ; and before the Same shall take
Effect, shall be approved by him, or being disapproved by him,
shall be repassed by two thirds of the Senate and House of Rep-
resentatives, according to the Rules and Limitations prescribed
in the Case of a Bill,
Section 8. The Congress shall have Power to lay and collect
Taxes, Duties, Imposts and Excises, to pay the Debts and pro-
vide for the common Defence and general Welfare of the United
States ; but all Duties, Imposts and Excises shall be uniform
throughout the United States ;
To borrow Money on the credit of the United States ;
To regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes ;
To establish an uniform Rule of Naturalization, and uniform
Laws on the subject of Bankruptcies throughout the United
States ;
To coin Money, regulate the Value thereof, and of foreign Coin,
and fix the Standard of Weights and Measures ;
To provide for the Punishment of counterfeiting the Securities
and current Coin of the United States ;
To establish Post Offices and post Roads ;
To promote the Progress of Science and useful Arts, by se-
curing for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries ;
To constitute Tribunals inferior to the supreme Court ;
To define and punish Piracies and Felonies committed on the
high Seas, and Offences against the Law of Nations ;
To declare War, grant Letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water ;
To raise and support Armies, but no Appropriation of Money
to that Use shall be for a longer Term than two Years ;
To provide and maintain a Navy ;
To make Rules for the Government and Regulation of the land
and naval Forces ;
379
Evolution of the Constitution
To provide for calling forth the Militia to execute the Laws of
the Union, suppress Insurrections and repel Invasions ;
To provide for organizing, arming, and disciplining, the Militia,
and for governing such Part of them as may be employed in the
Service of the United States, reserving to the States respectively,
the Appointment of the Officers, and the Authority of training the
Militia according to the discipline prescribed by Congress ;
To exercise exclusive Legislation in all Cases whatsoever, over
such District (not exceeding ten Miles square) as may, by Ces-
sion of particular States, and the Acceptance of Congress, become
the Seat of the Government of the United States, and to exercise
like Authority over all Places purchased by the Consent of the
Legislature of the State in which the Same shall be, for the Erec-
tion of Forts, Magazines, Arsenals, dock-Yards, and other need-
ful Buildings ; — And
To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.
Section 9. The Migration or Importation of such Persons as
any of the States now existing shall think proper to admit, shall
not be prohibited by the Congress prior to the Year one thousand
eight hundred and eight, but a Tax or duty may be imposed on
such Importation, not exceeding ten dollars for each Person.
The Privilege of the Writ of Habeas Corpus shall not be sus-
pended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation, or other direct, tax shall be laid, unless in Pro-
portion to the Census or Enumeration herein before directed to
be taken.
No Tax or Duty shall be laid on Articles exported from any
State.
No Preference shall be given by any Regulation of Commerce
or Revenue to the Ports of one State over those of another : nor
shall Vessels bound to, or from, one State, be obliged to enter,
clear, or pay Duties in another.
380
Appendix
No Money shall be drawn from the Treasury, but in Conse-
quence of Appropriations made by Law ; and a regular Statement
and Account of the Receipts and Expenditures of all public
Money shall be published from time to time.
No Title of Nobility shall be granted by the United States :
And no Person holding any Office of Profit or Trust under them,
shall, without the Consent of the Congress, accept of any present.
Emolument, Office, or Title, of any kind whatever, from any
King, Prince, or foreign State.
Section io. No State shall enter into any Treaty, Alliance,
or Confederation ; grant Letters of Marque and Reprisal ; coin
Money ; emit Bills of Credit ; make any Thing but gold and
silver Coin a Tender in Payment of Debts ; pass any Bill of
Attainder, ex post facto Law, or Law impairing the Obligation
of Contracts, or grant any Title of NobiUty.
No State shall, without the Consent of the Congress, lay any
Imposts or Duties on Imports or Exports, except what may be
absolutely necessary for executing it's inspection Laws : and the
net Produce of all Duties and Imposts, laid by any State on Im-
ports or Exports, shall be for the Use of the Treasury of the
United States ; and all such Laws shall be subject to the Revision
and Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty
of Tonnage, keep Troops, or Ships of War in time of Peace, enter
into any Agreement or Compact with another State, or with a
foreign Power, or engage in War, unless actually invaded, or in
such imminent Danger as will not admit of delay.
ARTICLE II.
Section i. The executive Power shall be vested in a President
of the United States of America. He shall hold his Office during
the Term of four Years, and, together with the Vice President,
chosen for the same Term, be elected, as follows
Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors, equal to the whole
Number of Senators and Representatives to which the State may
be entitled in the Congress : but no Senator or Representative,
3S1
Evolution of the Constitution
or Person holding an Office of Trust or Profit under the United
States, shall be appointed an Elector.
[The electors shall meet in their respective States, and vote by
ballot for two persons, of whom one at least shall not be an in-
habitant of the same State with themselves. And they shall
make a list of all the persons voted for, and of the number of
votes for each ; which list they shall sign and certify, and trans-
mit sealed to the seat of the Government of the United States,
directed to the President of the Senate. The President of the
Senate shall, in the presence of the Senate and House of Repre-
sentatives, open all the certificates, and the votes shall then be
counted. The person having the greatest number of votes shall
be the President, if such number be a majority of the whole
number of electors appointed ; and if there be more than one
who have such majority, and have an equal number of votes,
then the House of Representatives shall immediately chuse by
ballot one of them for President ; and if no person have a ma-
jority, then from the five highest on the fist the said House shall
in like manner chuse the President. But in chusing the Presi-
dent, the votes shall be taken by States, the representation from
each State having one vote ; a quorum for this purpose shall con-
sist of a member or members from two-thirds of the States, and a
majority of all the States shall be necessary to a choice. In every
case, after the choice of the President, the person having the
greatest number of votes of the electors shall be the Vice Presi-
dent. But if there should remain two or more who have equal votes,
the Senate shall chuse from them by ballot the Vice President.]*
The Congress may determine the Time of chusing the Electors,
and the Day on which they shall give their Votes ; which Day
shall be the same throughout the United States.
No person except a natural bom Citizen, or a Citizen of the
United States, at the time of the Adoption of this Constitution,
shall be eligible to the Office of President ; neither shall any Per-
son be eligible to that office who shall not have attained to the
*The clause included within brackets has been superseded by the
Twelfth Amendment.
382
Appendix
Age of thirty five Years, and been fourteen Years a Resident
within the United States.
In Case of the Removal of the President from Office, or of his
Death, Resignation or Inability to discharge the Powers and
Duties of the said Office, the Same shall devolve on the Vice
President, and the Congress may by Law provide for the Case of
Removal, Death, Resignation or Inability, both of the President
and Vice President, declaring what Officer shall then act as Presi-
dent, and such Officer shall act accordingly, until the Disability
be removed, or a President shall be elected.
The President shall, at stated Times, receive for his Services,
a Compensation, which shall neither be encreased nor dimin-
ished during the Period for which he shall have been elected,
and he shall not receive within that Period any other Emolument
from the United States, or any of them.
Before he enter on the Execution of his Office, he shall take
the following Oath or Affirmation: — "I do solemnly swear (or
affirm) that I will faithfully execute the Office of President of the
United States, and will to the best of my Ability, preserve, pro-
tect and defend the Constitution of the United States."
Section 2. The President shall be Commander in Chief of the
Army and Navy of the United States, and of the Militia of the
several States, when called into the actual Service of the United
States ; he may require the Opinion, in writing, of the principal
Officer in each of the executive Departments, upon any Subject
relating to the Duties of their respective Offices, and he shall have
Power to grant Reprieves and Pardons for Offences against the
United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of
the Senate, to make Treaties, provided two thirds of the Senators
present concur ; and he shall nominate, and by and with the
Advice* and Consent of the Senate, shall appoint Ambassadors,
other public Ministers and Consuls, Judges of the supreme Court,
and all other Officers of the United States, whose Appointments
are not herein otherwise provided for, and which shall be estab-
lished by Law : but the Congress may by Law vest the Appoint-
383
Evolution of the Constitution
ment of such inferior Officers, as they think proper, in the Presi-
dent alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that
may happen during the recess of the Senate, by granting Com-
missions which shall expire at the End of their next Session.
Section 3. He shall from time to time give to the Congress
Information of the state of the Union, and recommend to their
Consideration such Measures as he shall judge necessary and
expedient ; he may, on extraordinary Occasions, convene both
Houses, or either of them, and, in Case of Disagreement between
them, with Respect to the Time of Adjournment, he may adjourn
them to such Time as he shall think proper ; he shall receive
Ambassadors and other public Ministers ; he shall take Care that
the Laws be faithfully executed, and shall Commission all the
Officers of the United States.
Section 4. The President, Vice President and all civil Officers
of the United States, shall be removed from Office on Impeach-
ment for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors.
ARTICLE III.
Section i. The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish. The
Judges, both of the supreme and inferior Courts, shall hold their
Offices during good Behaviour, and shall, at stated Times, re-
ceive for their Services, a Compensation, which shall not be di-
minished during their Continuance in Office.
Section 2. The judicial Power shall extend to all Cases, in
Law and Equity, arising under this Constitution, the Laws of the
United States, and Treaties made, or which shall be made, under
their Authority ; — to all Cases affecting Ambassadors, other pub-
lic Ministers and Consuls ; — to all Cases of admiralty and mari-
time Jurisdiction ; — to Controversies to which the United States
shall be a Party ; — to Controversies between two or more States ;
— between a State and Citizens of another State ; — between Citi-
384
Appendix
zens of different States, — ^between Citizens of the same State claim-
ing Lands under Grants of different States, and between a State,
or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme
Court shall have original Jurisdiction. In all the other Cases
before mentioned, the supreme Court shall have appellate Juris-
diction, both as to Law and Fact, with such Exceptions, and
under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall
be by Jury ; and such Trial shall be held in the State where the
said Crimes shall have been committed ; but when not committed
within any State, the Trial shall be at such Place or Places as the
Congress may by Law have directed.
Section 3. Treason against the United States, shall consist
only in levying War against them, or in adhering to their Ene-
mies, giving them Aid and Comfort. No Person shall be con-
victed of Treason unless on the Testimony of two Witnesses to
the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of
Treason, but no Attainder of Treason shall work Corruption of
Blood, or Forfeiture except during the Life of the Person attainted.
ARTICLE IV.
Section i. Full Faith and Credit shall be given in each State
to the public Acts, Records, and judicial Proceedings of every
other State. And the Congress may by general LaA^s prescribe
the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.
Section 2. The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.
A person charged in any State with Treason, Felony, or other
Crime, who shall flee from Justice, and be found in another State,
shall on Demand of the executive Authority of the State from
which he fled, be delivered up to be removed to the State having
Jurisdiction of the Crime.
as 385
Evolution of the Constitution
No Person held to Service or Labour in one State, under the
Laws thereof, escaping into another, shall, in Consequence of any
Law or Regulation therein, be discharged from such Service or
Labour, but shall be delivered up on Claim of the Party to whom
such Service or Labour may be due.
Section 3. New States may be admitted by the Congress into
this Union ; but no new State shall be formed or erected within
the Jurisdiction of any other State ; nor any State be formed by
the Junction of two or more States, or Parts of States, without the
Consent of the Legislatures of the States concerned as well as of
the Congress.
The Congress shall have Power to dispose of and make all
needful Rules and Regulations respecting the Territory or other
Property belonging to the United States ; and nothing in this
Constitution shall be so construed as to Prejudice any Claims of
the United States, or of any particular State.
Section 4. The United States shall guarantee to every State
in this Union a Republican Form of Government, and shall pro-
tect each of them against Invasion ; and on Application of the
Legislature, or of the Executive (when the Legislature cannot be
convened) against domestic Violence.
ARTICLE V.
The Congress, whenever two thirds of both Houses shall deem
it necessary, shall propose Amendments to this Constitution, or,
on the Application of the Legislatures of two thirds of the several
States, shall call a Convention for proposing Amendments, which,
in either Case, shall be vaHd to all Intents and Purposes, as Part
of this Constitution, when ratified by the Legislatures of three
fourths of the several States, or by Conventions in three fourths
thereof, as the one or the other Mode of Ratification may be pro-
posed by the Congress ; Provided that no Amendment which
may be made prior to the Year One thousand eight hundred and
eight shall in any Manner affect the first and fourth Clauses
in the Ninth Section of the first Article; and that no State,
without its Consent, shall be deprived of its equal Suffrage in the
Senate.
386
Appendix
ARTICLE VI.
All Debts contracted and Engagements entered into, before
the Adoption of this Constitution, shall be as valid against the
United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land ; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and
judicial Officers, both of the United States and of the several
States, shall be bound by Oath or Affirmation, to support this
Constitution ; but no religious Test shall ever be required as a
Qualification to any Office or public Trust under the United States.
ARTICLE VII.
The ratification of the Conventions of nine States, shall be suffi-
cient for the Establishment of this Constitution between the States
so ratifying the Same.
Done in Convention by the Unanimous Consent of the States
present the Seventeenth Day of September in the Year of our
Lord one thousand seven hundred and Eighty seven, and of
the Independance of the United States of America the Twelfth
In TDQltnedd whereof We have hereunto subscribed our Names,
Go: WASHINGTON—
Presidt. and Deputy from Virginia
New Hampshire.
John Langdon, Nicholas Gilman.
Massachusetts.
Nathaniel Gorham, Rufus King.
Connecticut.
Wm. Saml. Johnson, Roger Sherman.
387
Evolution of the Constitution
New York.
Alaxander Hamilton.
Wil: Livingston,
David Brearley,
B. Franklin,
Thomas Mifflin,
RoBT. Morris,
Geo. Clymer,
New Jersey.
Pennsylvania.
Delaware.
Geo. Read,
Gunning Bedford, Jun.,
John Dickinson,
Maryland.
James McHenry,
Dan. Jenifer, of St. Thomas,
Wm. Paterson,
Jona. Dayton.
Thos. Fitzsimons,
Jared Ingersoll,
James Wilson,
Gouv. Morris.
Richard Bassett,
Jagg : Broom.
John Blair,
Virginia.
North Carolina.
Wm. Blount,
Rich'd Dobbs Speight,
Dan. Carroll.
James Madison, Jr.
Hugh Williamson.
South Carolina.
J. Rutledge, Charles Pinckney,
Charles Cotesworth Pinckney, Pierce Butler.
William Few,
Attest :
Georgia.
Abr. Baldwin.
WILLIAM JACKSON, Secretary.
388
Appendix
Amendments
ARTICLE I.
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof ; or abridging the
freedom of speech, or of the press ; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.
ARTICLE II.
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.
ARTICLE III.
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.
ARTICLE IV.
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.
ARTICLE V.
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger ;
nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb ; nor shall be compelled in any
Criminal Case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law ; nor shall
private property be taken for public use, without just compensa-
tion.
389
Evolution of the Constitution
ARTICLE VI.
In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed ; which
district shall have been previously ascertained by law, and to
be informed of the nature and cause of the accusation ; to be
confronted with the witnesses against him ; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
ARTICLE VII.
In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved,
and no fact tried by a jury shall be otherwise re-examined in any
Court of the United States, than according to the rules of the
common law.
ARTICLE VIII.
Excessive bail shall not be required, nor excessive fines im-
p>osed, nor cruel and unusual punishments inflicted.
ARTICLE IX.
The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people.
ARTICLE X.
The powers not delegated to the United States by the Consti-
tution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.
ARTICLE XL
The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.
390
Appendix
ARTICLE XII.
The Electors shall meet in their respective states, and vote by
ballot for President and Vice-President, one of whom, at least,
shall not be an inhabitant of the same State with themselves ;
they shall name in their ballots the person voted for as President,
and in distinct ballots the person voted for as Vice-President, and
they shall make distinct lists of all persons voted for as President,
and of all persons voted for as Vice-President, and of the number
of votes for each, which lists they shall sign and certify, and
transmit sealed to the seat of the Government of the United States,
directed to the President of the Senate ; — The President of the
Senate shall, in the presence of the Senate and House of Repre-
sentatives, open all the certificates and the votes shall then be
counted ; — ^The person having the greatest number of votes for
President, shall be the President, if such number be a majority
of the whole number of Electors appointed ; and if no person
have such majority, then from the persons having the highest
numbers not exceeding three on the list of those voted for as
President, the House of Representatives shall choose immediately,
by ballot, the President. But in choosing the President, the votes
shall be taken by states, the representation from each state having
one vote ; a quorum for this purpose shall consist of a member
or members from two-thirds of the states, and a majority of all
the states shall be necessary to a choice. And if the House of
Representatives shall not choose a President whenever the right
of choice shall devolve upon them, before the fourth day of March
next following, then the Vice-President shall act as President, as
in the case of the death or other constitutional disability of the
President. The person having the greatest number of votes as
Vice-President, shall be the Vice-President, if such number be a
majority of the whole number of Electors appointed, and if no
person have a majority, then from the two highest numbers on
the list, the Senate shall choose the Vice-President ; a quorum
for the purpose shall consist of two-thirds of the whole number
of Senators, and a majority of the whole number shall be neces-
sary to a choice. But no person constitutionally ineligible to the
39 «
Evolution of the Constitution
office of President shall be eligible to that of Vice-President of
the United States.
ARTICLE XIII.
Section i. Neither slavery nor involuntary servitude, except
as a punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place sub-
ject to their jurisdiction.
Section 2. Congress shall have power to enforce this article
by appropriatfe legislation.
ARTICLE XIV.
Section i. All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or immuni-
ties of citizens of the United States ; nor shall any State deprive
any person of life, liberty, or property, without due process of
law ; nor deny to any person within its jurisdiction the equal pro-
tection of the laws.
Section 2. Representatives shall be apportioned among the
several States according to their respective numbers, counting
the whole number of persons in each State, excluding Indians not
taxed. But when the right to vote at any election for the choice
of electors for President and Vice-President of the United States,
Representatives in Congress, the Executive and Judicial officers
of a State, or the members of the Legislature thereof, is denied
to any of the male inhabitants of such State, being twenty-one
years of age, and citizens of the United States, or in any way
abridged, except for participation in rebellion, or other crime, the
basis of representation therein shall be reduced in the proportion
which the number of such male citizens shall bear to the whole
number of male citizens twenty-one years of age in such State.
Section 3, No person shall be a Senator or Representative in
Congress, or elector of President and Vice-President, or hold any
office, civil or military, under the United States, or under any
State, who, having previously taken an oath, as a member of
Congress, or as an officer of the United States, or as a member
392
Appendix
of any State Legislature, or as an executive or judicial officer of
any State, to support the Constitution of the United States, shall
have engaged in insurrection or rebellion against the same, or
given aid or comfort to the enemies thereof. But Congress may
by a vote of two-thirds of each House, remove such disability.
Section 4. The vaUdity of the public debt of the United States,
authorized by law, including debts incurred for payment of pen-
sions and bounties for services in suppressing insurrection or re-
bellion, shall not be questioned. But neither the United States
nor any State shall assume or pay any debt or obligation incurred
in aid of insurrection or rebellion against the United States, or
any claim for the loss or emancipation of any slave ; but all such
debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by ap-
propriate legislation, the provisions of this article. "
ARTICLE XV.
Section i . The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this
article by appropriate legislation.
393
Index
Absolutism, 105.
Adjournment, 65, 98, 99, 135.
Ambassador, 96, 295.
Amendment, 61, 78, 176, 265, 311.
Andros, Sir Edmund, 222.
Appointing power, 64, 78, 98, 171.
Apportionment of Congress, lOO.
Arms, right to bear, 208.
Army, 96, 299.
Arrest, privilege from, 132.
Attainder of treason, 210.
Bail, 205.
Bankruptcy, 311.
Bellomont, Earl of, 228.
Bill of rights, 54.
Blackstone, Commentaries of, 94.
Borrow money, power to, 297.
Boundary disputes, 241.
Bradford, 330.
Bryce, 12, 94.
Campbell, on origin of institutions,
»3, 19, 3»5-
Captures, 294.
Carolinas, 41, 51.
Carson, Hampton L., 217.
Censors, council of, 80.
Census, 267, 273,
College, the, of Philadelphia, 262.
Columbia, District of, 310.
Commander-in-chief, 158, 226.
Commerce, regulation of, 99, 225,
293. 3"-
Confederation, Articles of, 242.
Congress, control of, by president,
99 ; general powers of, 275 ; pre-
siding officer of, 276 ; restric-
tions on, 277.
Connecticut, Fundamental Orders
of, 41 ; charter of, 24, 44 ; Dutch
influence in, 367.
Constitution, sources of the, 19 ;
great age of, 22.
Constitutions, native, 23 ; of 1776,
23. 25. 70.
Continental Congress, 238.
Contracts, obligation of, 262.
Controversies between states, 305.
Convention, the, of 1787, 255.
Corporations, use of, in America,
119.
Council for P'oreign Plantations,
222.
Council, the, for New England,
339-
County, the, in Virginia, 337.
Coxe, Brinton, 185.
Debate, freedom of, 130.
Debts under Confederation, 310.
Deeds, recording of, 319, 368.
Departments, confusion of, 34, 38,
64 ; separate, 109.
Domestic violence in a state, 310.
Drayton, William Henry, 250.
Du Chaillu, 14.
Dudley, Governor, 346.
395
Index
Duke of York, grants to, 41.
Dutch, in New York, 352, 354,
359; in New England, 353;
their ideas of religious liberty,
357 ; in Pennsylvania, 359, 365.
East India Company, 93,
East Jersey, Concessions of, 48,
50.
Elections, manner of holding, 311.
Electors of the president, 83, 153.
Embargoes, 78.
Eminent domain, 214.
English sources of the constitution,
90.
Excessive bail and fines, 205.
Execution of the laws, 60, 98, 150,
156, 158.
Executive, 80, 94, 242, 246, 248.
Expenditure of public money, 314.
Export duties, 311.
Ex post facto laws, 82, 210.
Federal power, 249, 251.
Federalism, 215, 217, 219.
Fines, 205.
Foster, on the Constitution, 13,
Franklin, Benjamin, his plans of
union, 231, 238, 240.
Free schools, 324.
Freedom of debate, 130.
Freedom of the press, 206.
Furly, Benjamin, 361.
Galloway, Joseph, 238.
Georgia, charter of, 68, 70.
German origin of New England
towns, 13.
Gladstone, II.
Grocers' Company, 28.
Habeas corpus, 212.
Hamilton, his plan of union, 261.
House of representatives, 117.
Hue and cry, 220.
Hutchinson, his plan of union, 235.
Impeachment, 59, 78, 86, 147.
Inconsistent offices, 103.
Indians, origin of, 14.
Indians, treatment of, by the Dutch,
358.
Intercourse among the colonies,
220, 221, 225, 245, 290.
Inventions, 188.
Jeopardy, twice in, 205.
Johnson, Dr. Samuel, his plan of
union, 236.
Judiciary, the, 174, 295.
Jury, trial by, 201.
Keith, Sir William, 231.
Kid, Social Evolution, 22.
Liberty, religious, 190.
Locke, John, 51.
Lords of Trade, 222.
Madoc, the Welsh prince, 14.
Marque, letters of, 96, 309.
Martial law, 212.
Maryland, charter of^ 40 ; constitu-
tion of, 81.
Massachusetts, constitutional expe-
rience of, 20, 25 ; first charter
of, 37 ; second charter of, 62 ;
rejected constitution of, 86 ; sec-
ond constitution of, 88.
Mayflower, agreement on board of,
35.
396
Index
Measures, standard of, 298.
Meigs, William M., 185.
Mennonites, the, 364.
Merchant adventurers, 29.
Message of president, 85, 97, 170.
Militia, 208.
Money, regulation of the value of,
237, 298.
Money, when to be issued from
treasury, 307.
Money-bills, 133.
Montesquieu, Spirit of Laws, 1 14.
Name of United States, 274.
Nationality, 261, 266, 309.
Naturalization, 189.
Navy, 304.
New England, charter of, 35.
New England towns, 318, 320,
325, 336, 340, 342.
New England union, 219.
New Hampshire, grants of, 41 j
commission for, 55 ; first consti-
tution of, 71 ; rejected constitu-
tion of, 87 ; second constitution
of, 88.
New Jersey, constitution of, 77.
New states, 311.
New York, constitution of, 83.
Nobility, titles of, 211.
Non-importation agreements, 238.
Obligation of contracts, 262.
Pardoning power, 96, 167.
Patents, i88.
Paterson's plan of union, 261.
Patrick, David, 347.
Peace, power to declare, 266.
Penn, William, 57, 223, 360.
Pennsylvania, constitutional expe-
rience of, 21 ; charter of, 41 ;
first frame of, 56, 65 ; charter of
privileges of, 65 ; constitution of^
79.
Peters, Hugh, 346.
Peters, Richard, 235.
Petition, right to, 207.
Pinckney's plan of union, 258.
Post-oflSce, 307.
Presents, 2H.
Presiding officer of senate, 129.
Primogeniture, 324, 369.
Prisoner's privilege of counsel and
witnesses, 203.
Privilege from arrest, 132.
Privy council, 76, 222.
Procedure of Congress, 143.
Profit, offices of, 21 1.
Punishments, 205.
Puritans, Dutch influence among,
343-
Quartering of soldiers, 209.
Quorum of Congress, 102.
Raleigh, Sir Walter, his charter,
19, 26, 105.
Randolph's plan, 255.
Religion, freedom of, 190, 324,
357, 362.
Representation, 234, 245, 267,
371-
Representatives, house of^ 117.
Republican government in a state,
3"-
Rhode Island, charter of, 24, 47 ;
patent for, 44 ; not in New Eng-
land union, 221.
Rights, bill of; 54, 62, 67, 81.
397
Index
Salaries, 313.
Schools, free, 370.
Seizures and searches, 1 99,
Senate, 18, 63, 72, 73, 75, lOO, 123,
129.
Separate departments, 109.
Servants, escape of^ 220.
Slavery, 311.
Soldiers, quartering of, 209.
South Carolina, constitution of, 73 ;
second constitution of, 87.
Sovereignty of states, 284.
Speakership of Congress, 143.
Spencer, Herbert, 314.
States, controversies between, 305 ;
restrictions on, 279.
Stevens, on the constitution, 13.
Stone, Frederick D., 217.
Subject, equivalent to citizen, 205.
Taxation, 232, 287.
Taylor on the Constitution, 13.
Territory, 311.
Thayer, on Unconstitutional Law,
185.
Towns of New England, 13, 318,
320, 325, 336, 340, 342.
Treason, 210, 250, 308.
Treaty, power to make a, 306.
Trial by jury, 201,
Twice in jeopardy, 205.
Unconstitutional laws, prevention
of, 182.
Union, plans of, 218, 267 ; plan of
Charles II., 222 ; plan of James
II., 222 ; plan of, in 1690, 223 ,
plan of William Penn, 223 ; plan
of Lords of Trade, 227 ; D'Ave-
nant's plan, 228 ; a Virginian's
plan, 228 ; Livingston's plan,
229 ; Earl of Stair's plan, 229 ;
Coxe's plan, 230 ; Franklin's
plan, in 1754, 231 ; Peters's plan,
235 ; Hutchinson's plan, 235 ;
Johnson's plan, 236 ; Galloway's
plan, 238 ; Franklin's plan, in
1775. 238, 240.
Vacancies in office, 312.
Vermont, constitution of, 86 ; sec-
ond constitution of, 89.
Veto power, 17, 84, 95, 1 61, 234.
Virginia, constitutional experience
of, 21 ; first charter of, 27, 29 ;
second charter of, 30 ; third char-
ter of, 32 ; house of burgesses of,
33 ; charter dissolved, 34 ; con-
stitution of, 75.
Von Hoist, 314.
War, power to declare, 96, 140,
226.
Webster, Noah, 252.
Weights, standard of, 298.
West India Company, 356.
West Jersey, Concessions of, 50,
S3-
Winslow, Edward, 351.
Winthrop, Governor, 333, 336.
THE END.
EUOTROTVPEO AND PRINTED BV J. B, LiPPINOOTT COMPANY, PHILADELPHIA, U.8.A.
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