Civil Government in the United States Considered with
by
John Fiske
Part 4 out of 8
To this group some writers add Maryland, founded in 1632, because its
territory had been claimed by the London Company; but the earliest
settlements in Maryland, its principal towns, and almost the whole of
its territory, come north of latitude 38 deg. and within the middle zone.
[Sidenote: 3. The middle zone.]
Between the years 1614 and 1621 the Dutch founded their colony of New
Netherland upon the territory included between the Hudson and Delaware
rivers, or, as they quite naturally called them, the North and South
rivers. They pushed their outposts up the Hudson as far as the site
of Albany, thus intruding far into the northern zone. In 1638 Sweden
planted a small colony upon the west side of Delaware Bay, but in 1655
it was surrendered to the Dutch. Then in 1664 the English took New
Netherland from the Dutch, and Charles II. granted the province to his
brother, the Duke of York. The duke proceeded to grant part of it to
his friends, Berkeley and Carteret, and thus marked off the new colony
of New Jersey. In 1681 the region west of New Jersey was granted to
William Penn, and in the following year Penn bought from the Duke of
York the small piece of territory upon which the Swedes had planted
their colony. Delaware thus became an appendage to Penn's greater
colony, but was never merged in it. Thus five of the original
thirteen states--Maryland, New York, New Jersey, Pennsylvania, and
Delaware--were constituted in the middle zone.
As we have already observed, the westward movement of population in
the United States has largely followed the parallels of latitude, and
thus the characteristics of these three original strips or zones have,
with more or less modification, extended westward. The men of New
England, with their Portland and Salem reproduced more than 3000 miles
distant in the state of Oregon, and within 100 miles of the Pacific
Ocean, may be said in a certain sense to have realized literally the
substance of King James's grant to the Plymouth Company. It will be
noticed that the kinds of local government described in our earlier
chapters are characteristic respectively of the three original zones:
the township system being exemplified chiefly in the northern zone,
the county system in the southern zone, and the mixed township-county
system in the central zone.
[Sidenote: House of Burgesses in Virginia.]
The London and Plymouth companies did not perish until after state
governments had been organized in the colonies already founded upon
their territories. In 1619 the colonists of Virginia, with the aid of
the more liberal spirits in the London Company, secured for themselves
a representative government; to the governor and his council,
appointed in England, there was added a general assembly composed of
two burgesses from each "plantation," [2] elected by the inhabitants.
This assembly, the first legislative body that ever sat in America,
met on the 30th of July, 1619, in the choir of the rude church at
Jamestown. The dignity of the burgesses was preserved, as in the House
of Commons, by sitting with their hats on; and after offering prayer,
and taking the oath of allegiance and supremacy, they proceeded to
enact a number of laws relating to public worship, to agriculture, and
to intercourse with the Indians. Curiously enough, so confident was
the belief of the settlers that they were founding towns, that they
called their representatives "burgesses," and down to 1776 the
assembly continued to be known as the House of "Burgesses," although
towns refused to grow in Virginia, and soon after counties were
organized in 1634 the burgesses sat for counties. Such were the
beginnings of representative government in Virginia.
[Footnote 2: The word "plantation" is here used, not in its later and
ordinary sense, as the estate belonging to an individual planter,
but in an earlier sense. In this early usage it was equivalent to
"settlement." It was used in New England as well as in Virginia;
thus Salem was spoken of by the court of assistants in 1629 as "New
England's Plantation."]
[Sidenote: Company of Massachusetts Bay.]
The government of Massachusetts is descended from the Dorchester
Company formed in England in 1623, for the ostensible purpose of
trading in furs and timber and catching fish on the shores of
Massachusetts Bay. After a disastrous beginning this company was
dissolved, but only to be immediately reorganized on a greater scale.
In 1628 a grant of the land between the Charles and Merrimack rivers
was obtained from the Plymouth Company; and in 1629 a charter was
obtained from Charles I. So many men from the east of England had
joined in the enterprise that it could no longer be fitly called a
Dorchester Company. The new name was significantly taken from the
New World. The charter created a corporation under the style of the
Governor and Company of Massachusetts Bay in New England. The freemen
of the Company were to hold a meeting four times a year; and they were
empowered to choose a governor, a deputy governor, and a council of
eighteen assistants, who were to hold their meetings each month. They
could administer oaths of supremacy and allegiance, raise troops
for the defence of their possessions, admit new associates into the
Company, and make regulations for the management of their business,
with the vague and weak proviso that in order to be valid their
enactment must in no wise contravene the laws of England. Nothing was
said as to the place where the Company should hold its meetings, and
accordingly after a few months the Company transferred itself and
its charter to New England, in order that it might carry out its
intentions with as little interference as possible on the part of the
crown.
Whether this transfer of the charter was legally justifiable or not
is a question which has been much debated, but with which we need not
here vex ourselves. The lawyers of the Company were shrewd enough to
know that a loosely-drawn instrument may be made to admit of great
liberty of action. Under the guise of a mere trading corporation the
Puritan leaders deliberately intended to found a civil commonwealth in
accordance with their own theories of government.
[Sidenote: Government of Massachusetts; the General Court]
After their arrival in Massachusetts, their numbers increased so
rapidly that it became impossible to have a primary assembly of all
the freemen, and so a representative assembly was devised after the
model of the Old English county court. The representatives sat for
townships, and were called deputies. At first they sat in the same
chamber with the assistants, but in 1644 the legislative body was
divided into two chambers, the deputies forming the lower house, while
the upper was composed of the assistants, who were sometimes called
magistrates. In elections the candidates for the upper house were put
in nomination by the General Court and voted on by the freemen. In
general the assistants represented the common or central power of
the colony, while the deputies represented the interests of popular
self-government. The former was comparatively an aristocratic and the
latter a democratic body, and there were frequent disputes between the
two.
It is worthy of note that the governing body thus constituted was at
once a legislative and a judicial body, like the English county court
which served as its model. Inferior courts were organized at an early
date in Massachusetts, but the highest judicial tribunal was the
legislature, which was known as the General Court. It still bears this
name to-day, though it long ago ceased to exercise judicial functions.
[Sidenote: New charter of Massachusetts]
Now as the freemen of Massachusetts directly chose their governor and
deputy-governor, as well as their chamber of deputies, and also took
part in choosing their council of assistants, their government was
virtually that of an independent republic. The crown could interpose
no effective check upon its proceedings except by threatening to annul
its charter and send over a viceroy who might be backed up, if need
be, by military force. Such threats were sometimes openly made, but
oftener hinted at. They served to make the Massachusetts government
somewhat wary and circumspect, but they did not prevent it from
pursuing a very independent policy in many respects, as when,
for example, it persisted in allowing none but members of the
Congregational church to vote. This measure, by which it was intended
to preserve the Puritan policy unchanged, was extremely distasteful to
the British government. At length in 1684 the Massachusetts charter
was annulled, an attempt was made to suppress town-meetings, and the
colony was placed under a military viceroy, Sir Edmund Andros. After
a brief period of despotic rule, the Revolution in England worked a
change. In 1692 Massachusetts received a new charter, quite different
from the old one. The people were allowed to elect representatives to
the General Court, as before, but the governor and lieutenant-governor
were appointed by the crown, and all acts of the legislature were
to be sent to England for royal approval. The general government of
Massachusetts was thus, except for its possession of a charter, made
similar to that of Virginia.
[Sidenote: Connecticut and Rhode Island]
The governments of Connecticut and Rhode Island were constructed
upon the same general plan as the first government of Massachusetts.
Governors councils, and assemblies were elected by the people. These
governments were made by the settlers themselves, after they had come
out from Massachusetts; and through a very singular combination of
circumstances[3] they were confirmed by charters granted by Charles II
in 1662, soon after his return from exile. So thoroughly republican
were these governments that they remained without change until 1818 in
Connecticut and until 1842 in Rhode Island.
[Footnote 3: See my _Beginnings of New England_, pp. 192-196.]
We thus observe two kinds of state government in the American
colonies. In both kinds the people choose a representative legislative
assembly; but in the one kind they also choose their governor, while
in the other kind the governor is appointed by the crown. We have now
to observe a third kind.
[Sidenote: Counties palatine in England]
[Sidenote: Charter of Maryland]
After the downfall of the two great companies founded in 1606, the
crown had a way of handing over to its friends extensive tracts of
land in America. In 1632 a charter granted by Charles I to Cecilius
Calvert, Lord Baltimore, founded the palatinate colony of Maryland. To
understand the nature of this charter, we must observe that among the
counties of England there were three whose rulers from an early time
were allowed special privileges. Because Cheshire and Durham bordered
upon the hostile countries, Wales and Scotland, and needed to be ever
on the alert, their rulers, the earls of Chester and the bishops of
Durham, were clothed with almost royal powers of command, and similar
powers were afterwards granted through favouritism to the dukes of
Lancaster. The three counties were called counties palatine (i.e.
"palace counties"). Before 1600 the earldom of Chester and the duchy
of Lancaster had been absorbed by the crown, but the bishopric of
Durham remained the type of an almost independent state, and the
colony palatine of Maryland was modelled after it. The charter of
Maryland conferred upon Lord Baltimore the most extensive privileges
ever bestowed by the British crown upon any subject. He was made
absolute lord of the land and water within his boundaries, could erect
towns, cities, and ports, make war or peace, call the whole fighting
population to arms and declare martial law, levy tolls and duties,
establish courts of justice, appoint judges, magistrates, and other
civil officers, execute the laws, and pardon offenders. He could erect
manors, with courts-baron and courts-leet, and confer titles and
dignities, so that they differed from those of England. He could make
laws with the assent of the freemen of the province, and, in cases of
emergency, ordinances not impairing life, limb, or property, without
their assent. He could found churches and chapels, have them
consecrated according to the ecclesiastical laws of England, and
appoint the incumbents.[4] For his territory and these royal powers
Lord Baltimore was to send over to the palace at Windsor a tribute of
two Indian arrows yearly, and to reserve for the king one fifth part
of such gold and silver as he might happen to get by mining. "The king
furthermore bound himself and his successors to lay no taxes, customs,
subsidies, or contributions whatever upon the people of the province,
and in case of any such demand being made, the charter expressly
declared that this clause might be pleaded as a discharge in full."
Maryland was thus almost an independent state. Baltimore's title was
Lord Proprietary of Maryland, and his title and powers were made
hereditary in his family, so that he was virtually a feudal king. His
rule, however, was effectually limited. The government of Maryland was
carried on by a governor and a two-chambered legislature. The governor
and the members of the upper house of the legislature were appointed
by the lord proprietary, but the lower house of the legislature was
elected, here as elsewhere, by the people; and in accordance with
time-honoured English custom all taxation must originate in the lower
house, which represented the people.
[Footnote 4: Browne's _Maryland: the History of a Palatinate_, p.
19.]
[Sidenote: Charter of Pennsylvania.]
[Sidenote: Mason and Dixon's line]
Half a century after the founding of Maryland, similar though somewhat
less extensive proprietary powers were granted by Charles II. to
William Penn, and under them the colony of Pennsylvania was founded
and Delaware was purchased. Pennsylvania and Delaware had each its
house of representatives elected by the people; but there was only one
governor and council for the two colonies. The governor and council
were appointed by the lord proprietary, and as the council confined
itself to advising the governor and did not take part in legislation,
there was no upper house. The legislature was one-chambered. The
office of lord proprietary was hereditary in the Penn family. For
about eighty years the Penns and Calverts quarrelled, like true
sovereigns, about the boundary-line between their principalities,
until in 1763 the matter was finally settled. A line was agreed upon,
and the survey was made by two distinguished mathematicians, Charles
Mason and Jeremiah Dixon. The line ran westward 244 miles from the
Delaware River, and every fifth milestone was engraved with the arms
of Penn on the one side and those of Calvert on the other. In later
times, after all the states north of Maryland had abolished slavery,
Mason and Dixon's line became famous as the boundary between slave
states and free states.
[Sidenote: Other proprietary governments.]
At first there were other proprietary colonies besides those just
mentioned, but in course of time the rights or powers of their lords
proprietary were resumed by the crown. When New Netherland was
conquered from the Dutch it was granted to the duke of York as lord
proprietary; but after one-and-twenty years the duke ascended the
throne as James II., and so the part of the colony which he had kept
became the royal province of New York. The part which he had sold to
Berkeley and Carteret remained for a while the proprietary colony of
New Jersey, sometimes under one government, sometimes divided between
two; but the rule of the lords proprietary was very unpopular, and in
1702 their rights were surrendered to the crown. The Carolinas and
Georgia were also at first proprietary colonies, but after a while
they willingly came under the direct sway of the crown. In general the
proprietary governments were unpopular because the lords proprietary,
who usually lived in England and visited their colonies but seldom,
were apt to regard their colonies simply as sources of personal
income. This was not the case with William Penn, or the earlier
Calverts, or with James Oglethorpe, the illustrious founder of
Georgia; but it was too often the case. So long as the lord's rents,
fees, and other emoluments were duly collected, he troubled himself
very little as to what went on in the colony. If that had been all,
the colony would have troubled itself very little about him. But the
governor appointed by this absentee master was liable to be more
devoted to his interests than to those of the people, and the civil
service was seriously damaged by worthless favourites sent over from
England for whom the governor was expected to find some office that
would pay them a salary. On the whole, it seemed less unsatisfactory
to have the governors appointed by the crown; and so before the
Revolutionary War all the proprietary governments had fallen, except
those of the Penns and the Calverts, which doubtless survived because
they were the best organized and best administered.
[Sidenote: At the time of the Revolution there were three forms of
colonial government: 1. Republican, 2. Proprietary, 3. Royal.]
There were thus at the time of the Revolutionary War three forms of
state government in the American colonies. There were, _first_,
the Republican colonies, in which the governors were elected by the
people, as in Rhode Island and Connecticut; _secondly,_the
Proprietary colonies, in which the governors were appointed by
hereditary proprietors, as in Maryland, Pennsylvania, and Delaware;
_thirdly_, the Royal colonies,[5] in which the governors were
appointed by the crown, as in Georgia, the two Carolinas, Virginia,
New Jersey, New York, Massachusetts, and New Hampshire. It is
customary to distinguish the Republican colonies as _Charter_
colonies, but that is not an accurate distinction, inasmuch as the
Proprietary colonies also had charters. And among the Royal colonies,
Massachusetts, having been originally a republic, still had a charter
in which her rights were so defined as to place her in a somewhat
different position from the other Royal colonies; so that Prof.
Alexander Johnston, with some reason, puts her in a class by herself
as a _Semi-royal_ colony.
[Footnote 5: Or, as they were sometimes called, Royal
_provinces._ In the history of Massachusetts many writers
distinguish the period before 1692 as the _colonial_ period, and
the period 1692 to 1774 as the _provincial_ period.]
[Sidenote: In all three forms there was a representative assembly, which
alone could impose taxes.]
These differences, it will be observed, related to the character and
method of filling the governor's office. In the Republican colonies
the governor naturally represented the interests of the people, in the
Proprietary colonies he was the agent of the Penns or the Calverts,
in the Royal colonies he was the agent of the king. All the thirteen
colonies alike had a legislative assembly elected by the people. The
basis of representation might be different in different colonies,
as we have seen that in Massachusetts the delegates represented
townships, whereas in Virginia they represented counties; but in all
alike the assembly was a truly representative body, and in all alike
it was the body that controlled the expenditure of public money. These
representative assemblies arose spontaneously because the founders of
the American colonies were Englishmen used from time immemorial to tax
themselves and govern themselves. As they had been wont to vote for
representatives in England, instead of leaving things to be controlled
by the king, so now they voted for representatives in Maryland or New
York, instead of leaving things to be controlled by the governor. The
spontaneousness of all this is quaintly and forcibly expressed by the
great Tory historian Hutchinson, who tells us that in the year 1619 a
house of burgesses _broke out_ in Virginia! as if it had been the
mumps, or original sin, or any of those things that people cannot help
having.
[Sidenote: The governor's council was a kind of upper house.]
This representative assembly was the lower house in the colonial
legislatures. The governor always had a council to advise with him and
assist him in his executive duties, in imitation of the king's privy
council in England. But in nearly all the colonies this council took
part in the work of legislation, and thus sat as an upper house, with
more or less power of reviewing and amending the acts of the assembly.
In Pennsylvania, as already observed, the council refrained from this
legislative work, and so, until some years after the Revolution, the
Pennsylvania legislature was one-chambered. The members of the council
were appointed in different ways, sometimes by the king or the lord
proprietary, or, as in Massachusetts, by the outgoing legislature, or,
as in Connecticut, they were elected by the people.
[Sidenote: The colonial government was like the English system in
miniature.]
Thus all the colonies had a government framed after the model to which
the people had been accustomed in England. It was like the English
system in miniature, the governor answering to the king, and the
legislature, usually two-chambered, answering to parliament. And as
quarrels between king and parliament were not uncommon, so quarrels
between governor and legislature were very frequent indeed, except
in Connecticut and Rhode Island. The royal governors, representing
British imperial ideas rather than American ideas, were sure to come
into conflict with the popular assemblies, and sometimes became
the objects of bitter popular hatred. The disputes were apt to be
concerned with questions in which taxation was involved, such as
the salaries of crown officers, the appropriations for war with
the Indians, and so on. Such disputes bred more or less popular
discontent, but the struggle did not become flagrant so long as the
British parliament refrained from meddling with it.
[Sidenote: The Americans never admitted the supremacy of parliament;]
The Americans never regarded parliament as possessing any rightful
authority over their internal affairs. When the earliest colonies were
founded, it was the general theory that the American wilderness was
part of the king's private domain and not subject to the control of
parliament. This theory lived on in America, but died out in England.
On the one hand the Americans had their own legislatures, which stood
to them in the place of parliament. The authority of parliament was
derived from the fact that it was a representative body, but it did
not represent Americans. Accordingly the Americans held that the
relation of each American colony to Great Britain was like the
relation between England and Scotland in the seventeenth century.
England and Scotland then had the same king, but separate parliaments,
and the English parliament could not make laws for Scotland. Such is
the connection between Sweden and Norway at the present day; they have
the same king, but each country legislates for itself. So the American
colonists held that Virginia, for example, and Great Britain had the
same king, but each its independent legislature; and so with the
other colonies,--there were thirteen parliaments in America, each as
sovereign within its own sphere as the parliament at Westminster, and
the latter had no more right to tax the people of Massachusetts than
the Massachusetts legislature had to tax the people of Virginia.
In one respect, however, the Americans did admit that parliament had a
general right of supervision over all parts of the British empire.[6]
Maritime commerce seemed to be as much the affair of one part of the
empire as another, and it seemed right that it should be regulated by
the central parliament at Westminster. Accordingly the Americans did
not resist custom-house taxes as long as they seemed to be imposed
for purely commercial purposes; but they were quick to resist direct
taxation, and custom-house taxes likewise, as soon as these began to
form a part of schemes for extending the authority of parliament over
the colonies.
[Footnote 6: except in the regulation of maritime commerce.]
In England, on the other hand, this theory that the Americans were
subject to the king's authority but not to that of parliament
naturally became unintelligible after the king himself had become
virtually subject to parliament.[7] The Stuart kings might call
themselves kings by the grace of God, but since 1688 the sovereigns of
Great Britain owe their seat upon the throne to an act of parliament.
[Footnote 7: In England there grew up the theory of the imperial
supremacy of parliament.]
To suppose that the king's American subjects were not amenable to the
authority of parliament seemed like supposing that a stream could rise
higher than its source. Besides, after 1700 the British empire began
to expand in all parts of the world, and the business of parliament
became more and more imperial. It could make laws for the East India
Company; why not, then, for the Company of Massachusetts Bay?
[Sidenote: Conflict between the British and the American theories was
precipitated by George III.]
Thus the American theory of the situation was irreconcilable with
the British theory, and when parliament in 1765, with no unfriendly
purpose, began laying taxes upon the Americans, thus invading the
province of the colonial legislatures, the Americans refused to
submit. The ensuing quarrel might doubtless have been peacefully
adjusted, had not the king, George III., happened to be entertaining
political schemes which were threatened with ruin if the Americans
should get a fair hearing for their side of the case.[8] Thus
political intrigue came in to make the situation hopeless. When a
state of things arises, with which men's established methods of civil
government are incompetent to deal, men fall back upon the primitive
method which was in vogue before civil government began to exist.
They fight it out; and so we had our Revolutionary War, and became
separated politically from Great Britain. It is worthy of note, in
this connection, that the last act of parliament, which brought
matters to a crisis, was the so-called Regulating Act of April, 1774,
the purpose of which was to change the government of Massachusetts.
This act provided that members of the council should be appointed by
the royal governor, that they should be paid by the crown and thus
be kept subservient to it, that the principal executive and judicial
officers should be likewise paid by the crown, and that town-meetings
should be prohibited except for the sole purpose of electing town
officers. Other unwarrantable acts were passed at the same time, but
this was the worst. Troops were sent over to aid in enforcing this
act, the people of Massachusetts refused to recognize its validity,
and out of this political situation came the battles of Lexington and
Bunker Hill.
[Footnote 8: See my _War of Independence_, pp. 58-64, 69-71
(Riverside Library for Young People).]
QUESTIONS ON THE TEXT.
1. Various claims to North America:--
a. Spanish.
b. English.
c. French.
2. What was needed to make such claims of any value?
3. The London and Plymouth companies:--
a. The time and purpose of their organization.
b. The grant to the London Company.
c. The grant to the Plymouth Company.
d. The magnitude of the zones granted.
e. The peculiar provisions for the intermediate zone.
f. First attempts at settlement.
4. To what important principle of the common charter of these
two companies did the colonists persistently cling?
5. The influence of these short-lived companies upon the settlement
and government of the United States:--
a. A review of the zones and their assignment.
b. The states of the northern zone and their origin.
c. The states of the southern zone and their origin.
d. The states of the middle zone and their origin.
e. The influence of the movement of population on local
government in each zone.
6. Early state government in Virginia:--
a. The part appointed and the part elected.
b. The first legislative body in America.
c. The dignity of its members.
d. The reason for the name "House of Burgesses."
7. Early state government in Massachusetts:--
a. The Dorchester Company.
b. The government provided for the Company of Massachusetts
Bay by its charter.
c. The real purpose of the Puritan leaders.
d. The change from the primary assembly of freemen to the
representative assembly.
e. The division of this assembly into two houses, with a comparison
of the houses.
f. The reason for the name "General Court."
g. The loss of the charter and the causes that led to it.
h. The new charter as compared with the old.
8. Compare the early governments of Connecticut and Rhode
Island with the first government of Massachusetts.
9. What two kinds of state government have thus far been
observed?
10. Early state government in Maryland:--
a. The favouritism of the crown as shown in land grants.
b. The palatine counties of England.
c. The bishopric of Durham the model of the colony of
Maryland.
d. The extraordinary privileges granted Lord Baltimore.
e. The tribute to be paid in return.
f. The ruler a feudal long.
g. Limitations of the ruler's power.
11. Early state government in Pennsylvania and Delaware:--
a. The powers of Penn as compared with those of Calvert.
b. One governor and council,
c. The legislature of each colony.
d. The quarrels of the Penns and Calverts.
e. Mason and Dixon's line.
12. What other proprietary governments were organized, and
what was their fate?
13. Why were proprietary governments unpopular? (Note the
exceptions, however.)
14. Classify and define the forms of colonial government in existence
at the beginning of the Revolution.
15. Show that these forms differed chiefly in respect to the governor's
office.
16. A representative assembly in each of the thirteen colonies:--
a. The basis of representation.
b. The control of the public money.
c. The spontaneousness of the representative assembly.
17. The governor's council:--
a. The custom in England.
b. The council as an upper house.
c. The council in Pennsylvania.
18. Compare the colonial systems with the British (1) in organization
and (2) in the nature of their political quarrels.
19. What was the American theory of the relation of each colony
to the British parliament?
20. What was the American attitude towards maritime regulations?
21. What was the British theory of the relation of the American
colonies to parliament?
22. How was the Revolutionary War brought on?
23. Describe the last act of parliament that brought matters to a
crisis.
Section 2. _The Transition from Colonial to State Governments._
[Sidenote: Dissolution of assemblies and parliaments.]
[Sidenote: Committees of Correspondence.]
During the earlier part of the Revolutionary War most of the states
had some kind of provisional government. The case of Massachusetts
may serve as an illustration. There, as in the other colonies, the
governor had the power of dissolving the assembly. This was like the
king's power of dissolving parliament in the days of the Stuarts.
It was then a dangerous power. In modern England there is nothing
dangerous in a dissolution of parliament; on the contrary, it is a
useful device for ascertaining the wishes of the people, for a new
House of Commons must be elected immediately. But in old times the
king would turn his parliament out of doors, and as long as he could
beg, borrow, or steal enough money to carry on government according to
his own notions, he would not order a new election. Fortunately such
periods were not very long. The latest instance was in the reign of
Charles I, who got on without a parliament from 1629 to 1640.[9] In
the American colonies the dissolution of the assembly by the governor
was not especially dangerous, but it sometimes made mischief by
delaying needed legislation. During the few years preceding the
Revolution, the assemblies were so often dissolved that it became
necessary for the people to devise some new way of getting their
representatives together to act for the colony. In Massachusetts this
end was attained by the famous "Committees of Correspondence." No one
could deny that town-meetings were legal, or that the people of
one township had a right to ask advice from the people of another
township. Accordingly each township appointed a committee to
correspond or confer with committees from other townships. This system
was put into operation by Samuel Adams in 1772, and for the next two
years the popular resistance to the crown was organized by these
committees. For example, before the tea was thrown into Boston
harbour, the Boston committee sought and received advice from every
township in Massachusetts, and the treatment of the tea-ships was from
first to last directed by the committees of Boston and five neighbour
towns.
[Footnote: 9: The kings of France contrived to get along without a
representative assembly from 1614 to 1789, and during this long period
abuses so multiplied that the meeting of the States-General in 1789
precipitated the great revolution which overthrew the monarchy.]
[Sidenote: Provincial Congress]
In 1774 a further step was taken. As parliament had overthrown the old
government, and sent over General Gage as military governor, to put
its new system into operation, the people defied and ignored Gage, and
the townships elected delegates to meet together in what was called a
"Provincial Congress." The president of this congress was the chief
provincial executive officer of the commonwealth, and there was a
small executive council, known as the "Committee of Safety."
[Sidenote: Provisional governments; "governors" and "presidents."]
This provisional government lasted about a year. In the summer of
1775 the people went further. They fell back upon their charter and
proceeded to carry on their government as it had been carried on
before 1774, except that the governor was left out altogether. The
people in town-meeting elected their representatives to a general
assembly, as of old, and this assembly chose a council of twenty-eight
members to sit as an upper house. The president of the council was the
foremost executive officer of the commonwealth, but he had not the
powers of a governor. He was no more the governor than the president
of our federal senate is the president of the United States. The
powers of the governor were really vested in the council, which was
an executive as well as a legislative body, and the president was
its chairman. Indeed, the title "president" is simply the Latin for
"chairman," he who "presides" or "sits before" an assembly. In 1775
it was a more modest title than "governor," and had not the smack of
semi-royalty which lingered about the latter. Governors had made so
much trouble that people were distrustful of the office, and at first
it was thought that the council would be quite sufficient for the
executive work that was to be done. Several of the states thus
organized their governments with a council at the head instead of
a governor; and hence in reading about that period one often comes
across the title "president," somewhat loosely used as if equivalent
to governor. Thus in 1787 we find Benjamin Franklin called "president
of Pennsylvania," meaning "president of the council of Pennsylvania."
But this arrangement did not prove satisfactory and did not last long.
It soon appeared that for executive work one man is better than a
group of men. In Massachusetts, in 1780, the old charter was replaced
by a new written constitution, under which was formed the state
government which, with some emendations in detail, has continued to
the present day. Before the end of the eighteenth century all the
states except Connecticut and Rhode Island, which, had always been
practically Independent, thus remodelled their governments.
[Sidenote: Origin of the Senates.]
These changes, however, were very conservative. The old form of
government was closely followed. First there was the governor, elected
in some states by the legislature, in others by the people. Then there
was the two-chambered legislature, of which the lower house was the
same institution after the Revolution that it had been before. The
upper house, or council, was retained, but in a somewhat altered
form. The Americans had been used to having the acts of their popular
assemblies reviewed by a council, and so they retained this revisory
body as an upper house. But the fashion of copying names and titles
from the ancient Roman republic was then prevalent, and accordingly
the upper house was called a Senate. There was a higher property
qualification for senators than for representatives, and generally
their terms of service were longer. In some states they were chosen by
the people, in others by the lower house. In Maryland they were chosen
by a special college of electors, an arrangement which was copied in
our federal government in the election of the president of the United
States. In most of the states there was a lieutenant-governor, as
there had been in the colonial period, to serve in case of the
governor's death or incapacity; ordinarily the lieutenant-governor
presided over the senate.
[Sidenote: Likenesses and differences between British and American
systems.]
Thus our state governments came to be repetitions on a small scale of
the king, lords, and commons of England. The governor answered to the
king, with his dignity very much curtailed by election for a short
period. The senate answered to the House of Lords except in being a
representative and not a hereditary body. It was supposed to represent
more especially that part of the community which was possessed of most
wealth and consideration; and in several states the senators were
apportioned with some reference to the amount of taxes paid by
different parts of the state.[10] When New York made its senate a
supreme court of appeal, it was in deliberate imitation of the House
of Lords. On the other hand, the House of Representatives answered to
the House of Commons as it used to be in the days when its power was
really limited by that of the upper house and the king. At the present
day the English of Commons is a supreme body. In case of a serious
difference with the House of Lords, the upper house must yield, or
else new peers will be created in sufficient number to reverse its
vote; and the lords always yield before this point is reached. So,
too, though the veto power of the sovereign has never been explicitly
abolished, it has not been exercised since 1707, and would not now be
tolerated for a moment. In America there is no such supreme body. The
bill passed by the lower house may be thrown out by the upper house,
or if it passes both it may be vetoed by the governor; and unless the
bill can again pass both houses by more than a simple majority, the
veto will stand. In most of the states a two-thirds vote in the
affirmative is required.
[Footnote 10: See my _Critical Period of American History_, p.
68.]
QUESTIONS ON THE TEXT.
1. The dissolution of assemblies and parliaments:--
a. The governor's power over the assembly in the colonies.
b. The king's power over parliament in England.
c. The danger of dissolution in the time of the Stuarts.
d. The safety of dissolution in modern England.
e. The frequency of dissolution before the Revolution.
2. Representation of the people in the provisional government
of Massachusetts:--
a. The committees of correspondence.
b. Their function, with an illustration from the "tea-ships."
c. The provincial congress.
d. The committee of safety.
e. The return to the two-chambered legislature of the charter.
3. Executive powers in the provisional government of Massachusetts;--
a. The foremost executive officer.
b. Where the power of governor was really vested.
c. Why the name of president was preferred to that of governor.
d. The example of Massachusetts followed elsewhere.
e. The end of provisional government in 1780.
4. The council transformed to a senate:--
a. The principle of reviewing the acts of the popular assembly.
b. The borrowing of Roman names.
c. The qualifications and service of senators.
d. The lieutenant-governor.
5. Our state governments patterned after the government of
England:--
a. The governor and the king.
b. The Senate and the House of Lords.
c. The House of Representatives and the House of Commons.
d. Some differences between the British system and the American.
Section 3. _The State Governments._
[Sidenote: Later modifications.]
During the present century our state governments have undergone
more or less revision, chiefly in the way of abolishing property
qualifications for offices making the suffrage universal, and electing
officers that were formerly appointed. Only in Delaware does there
still remain a property qualification for senators. There is no longer
any distinction in principle between the upper and lower houses of the
legislature. Both represent population, the usual difference being
that the senate consists of fewer members who represent larger
districts. Usually, too, the term of the representatives is two years,
and the whole house is elected at the same time, while the term of
senators is four years, and half the number are elected every two
years. This system of two-chambered legislatures is probably retained
chiefly through a spirit of conservatism, because it is what we
are used to. But it no doubt has real advantages in checking hasty
legislation. People are always wanting to have laws made about all
sorts of things, and in nine cases out of ten their laws would be
pernicious laws; so that it is well not to have legislation made too
easy.
[Sidenote: The suffrage.]
The suffrage by which the legislature is elected is almost universal.
It is given in all the states to all male citizens who have reached
the age of one-and-twenty. In many it is given also to _denizens_
of foreign birth who have declared an intention of becoming citizens.
In some it is given without further specification to every male
_inhabitant_ of voting age. Residence in the state for some
period, varying from three months to two years and a half, is also
generally required; sometimes a certain length of residence in the
county, the town, or even in the voting precinct, is prescribed. In
many of the states it is necessary to have paid one's poll-tax. There
is no longer any property qualification, though there was until
recently in Rhode Island, Criminals, idiots, and lunatics are excluded
from the suffrage. Some states also exclude duellists and men who bet
on elections. Connecticut and Massachusetts shut out persons who are
unable to read. In no other country has access to citizenship and the
suffrage been made so easy.
[Sidenote: Separation between legislation and the executive.]
A peculiar feature of American governments, and something which it is
hard for Europeans to understand, is the almost complete separation
between the executive and the legislative departments. In European
countries the great executive officers are either members of the
legislature, or at all events have the right to be present at its
meetings and take part in its discussions; and as they generally have
some definite policy by which they are to stand or fall, they are wont
to initiate legislation and to guide the course of the discussion. But
in America the legislatures, having no such central points about which
to rally their forces, carry on their work in an aimless, rambling
sort of way, through the agency of many standing committees. When
a measure is proposed it is referred to one of the committees for
examination before the house will have anything to do with it. Such a
preliminary examination is of course necessary where there is a vast
amount of legislative work going on. But the private and disconnected
way in which our committee work is done tends to prevent full and
instructive discussion in the house, to make the mass of legislation,
always chaotic enough, somewhat more chaotic, and to facilitate the
various evil devices of lobbying and log-rolling.
In pointing out this inconvenience attendant upon the American plan of
separating the executive and legislative departments, I must not be
understood as advocating the European plan as preferable for this
country. The evils that inevitably flow from any fundamental change in
the institutions of a country are apt to be much more serious than the
evils which the change is intended to remove. Political government is
like a plant; a little watering and pruning do very well for it, but
the less its roots are fooled with, the better. In the American system
of government the independence of the executive department, with
reference to the legislative, is fundamental; and on the whole it is
eminently desirable. One of the most serious of the dangers which
beset democratic government, especially where it is conducted on a
great scale, is the danger that the majority for the time being will
use its power tyrannically and unscrupulously, as it is always tempted
to do. Against such unbridled democracy we have striven to guard
ourselves by various constitutional checks and balances. Our written
constitutions and our Supreme Court are important safeguards, as
will be shown below. The independence of our executives is another
important safeguard. But if our executive departments were mere
committees of the legislature--like the English cabinet, for
example--this independence could not possibly be maintained; and the
loss of it would doubtless entail upon us evils far greater than those
which mow flow from want of leadership in our legislatures.[11]
[Footnote 11: In two admirable essays on "Cabinet Responsibility and
the Constitution," and "Democracy and the Constitution," Mr. Lawrence
Lowell has convincingly argued that the American system is best
adapted to the circumstances of this country. Lowell, _Essays on
Government_, pp. 20-117, Boston, 1890.]
We must remember that government is necessarily a cumbrous affair,
however conducted.
The only occasion on which the governor is a part of the legislature
is when he signs or vetoes a bill. Then he is virtually in himself
a third house.[12] As an executive officer the governor is far less
powerful than in the colonial times. We shall see the reason of
this after we have enumerated some of the principal offices in the
executive department. There is always a secretary of state, whose main
duty is to make and keep the records of state transactions. There is
always a state treasurer, and usually a state auditor or comptroller
to examine the public accounts and issue the warrants without which
the treasurer cannot pay out a penny of the state's money. There is
almost always an attorney-general, to appear for the state in the
supreme court in all cases in which the state is a party, and in
all prosecutions for capital offences. He also exercises some
superintendence over the district attorneys, and acts as legal adviser
to the governors and the legislature. There is also in many states
a superintendent of education; and in some there are boards of
education, of health, of lunacy and charity, bureau of agriculture,
commissioners of prisons, of railroads, of mines, of harbours, of
immigration, and so on. Sometimes such boards are appointed by the
governor, but such officers as the secretary of state, the treasurer,
auditor, and attorney-general are, in almost all the states, elected
by the people. They are not responsible to the governor, but to the
people who elect them. They are not subordinate to the governor, but
are rather his colleagues. Strictly speaking, the governor is not the
head of the executive department, but a member of it. The executive
department is parcelled out in several pieces, and his is one of the
pieces.
[Footnote 12: The state executive.]
[Sidenote: The governor's functions: 1. Advisor of legislature. 2.
Commander of state militia. 3. Royal prerogative of pardon. 4. Veto power.]
The ordinary functions of the governor are four in number. 1. He
sends a message to the legislature, at the beginning of each session,
recommending such measures as he would like to see embodied in
legislation. 2. He is commander-in-chief of the state militia, and as
such can assist the sheriff of a county in putting down a riot, or
the President of the United States, in the event of a war. On such
occasions the governor may become a personage of immense importance,
as, for example, in our Civil War, when President Lincoln's demands
for troops met with such prompt response from the men who will be
known to history as the great "war governors." 3. The governor is
invested with the royal prerogative of pardoning criminals, or
commuting the sentences pronounced upon them by the courts. This power
belongs to kings in accordance with the old feudal notion that the
king was the source or fountain of justice. When properly used it
affords an opportunity for rectifying some injustice for which the
ordinary machinery of the law could not provide, or for making such
allowances for extraordinary circumstances as the court could not
properly consider. In our country it is too often improperly used to
enable the worst criminals to escape due punishment, just because
it is a disagreeable duty to hang them. Such misplaced clemency is
pleasant for the murderers, but it makes life less secure for honest
men and women, and in the less civilized regions of our country it
encourages lynch law. 4. In all the states except Rhode Island,
Delaware, Ohio, and North Carolina, the governor has a veto upon the
acts of the legislature, as above explained; and in ordinary times
this power, which is not executive but legislative, is probably the
governor's most important and considerable power. In thirteen of
the states the governor can veto particular items in a bill for the
appropriation of public money, while at the same time he approves
the rest of the bill. This is a most important safeguard against
corruption, because where the governor does not have this power it is
possible to make appropriations for unworthy or scandalous purposes
along with appropriations for matters of absolute necessity, and then
to lump them all together in the same bill, so that the governor must
either accept the bad along with the good or reject the good along
with the bad. It is a great gain when the governor can select the
items and veto some while approving others. In such matters the
governor is often more honest and discreet than the legislature, if
for no other reason, because he is one man, and responsibility can be
fixed upon him more clearly than upon two or three hundred.
Such, in brief outline, is the framework of the American state
governments. But our account would be very incomplete without some
mention of three points, all of them especially characteristic of
the American state, and likely to be overlooked or misunderstood by
Europeans.
[Sidenote: In building the state, the local self-government was left
unimpaired.]
_First_, while we have rapidly built up one of the greatest
empires yet seen upon the earth, we have left our self-government
substantially unimpaired in the process. This is exemplified in
two ways: first, in the relationship of the state to its towns
and counties, and, secondly, in its relationship to the federal
government. Over the township and county governments the state
exercises a general supervision; indeed, it clothes them with their
authority. Townships and counties have no sovereignty; the state, on
the other hand, has many elements of sovereignty, but it does not use
them to obliterate or unduly restrict the control of the townships
and counties over their own administrative work. It leaves the local
governments to administer themselves. As a rule there is only just
enough state supervision to harmonize the working of so many local
administrations. Such a system of government comes as near as possible
toward making all American citizens participate actively in the
management of public affairs. It generates and nourishes a public
spirit and a universal acquaintance with matters of public interest
such as has probably never before been seen in any great country.
Public spirit of equal or greater intensity may have been witnessed
in small and highly educated communities, such as ancient Athens or
mediaeval Florence, but in the United States it is diffused over an
area equal to the whole of Europe. Among the leading countries of the
world England is the one which comes nearest to the United States
in the general diffusion of enlightened public spirit and political
capacity throughout all classes of society.
[Sidenote: Instructive contrast with France.]
A very notable contrast to the self-government which has produced such
admirable results is to be seen in France, and as contrasts are
often instructive, let me mention one or two features of the French
government. There is nothing like the irregularity and spontaneity
there that we have observed in our survey of the United States.
Everything is symmetrical. France is divided into eighty-nine
_departments_, most of them larger than the state of Delaware,
some of them nearly as large as Connecticut, and the administration
of one department is exactly like that of all the others. The chief
officer of the department is the prefect, who is appointed by
the minister of the interior at Paris. The prefect is treasurer,
recruiting officer, school superintendent, all in one, and he appoints
nearly all inferior officers. The department has a council, elected
by universal suffrage, but it has no power of assessing taxes. The
central legislature in Paris decides for it how much money it shall
use and how it shall raise it. The department council is not even
allowed to express its views on political matters; it can only attend
to purely local details of administration.
The smallest civil division in France is the _commune_, which may
be either rural or urban. The commune has a municipal council which
elects a mayor; but when once elected the mayor becomes directly
responsible to the prefect of the department, and through him to the
minister of the interior. If these greater officers do not like what
the mayor does, they can overrule his acts or even suspend him from
office; or upon their complaint the President of the Republic can
remove him.
[Sidenote: In France whether it is nominally a despotic empire or a
republic at the top, there is scarcely any self-government at the
bottom. Hence government there rests on an insecure foundation.]
Thus in France people do not manage their own affairs, but they are
managed for them by a hierarchy of officials with its head at Paris.
This system was devised by the Constituent Assembly in 1790 and
wrought into completeness by Napoleon in 1800. The men who devised
it in 1790 actually supposed that they were inaugurating a system or
political freedom(!), and unquestionably it was a vast improvement
upon the wretched system which it supplanted; but as contrasted with
American methods and institutions, it is difficult to call it anything
else than a highly centralized despotism. It has gone on without
essential change through all the revolutions which have overtaken
France since 1800. The people have from time to time overthrown an
unpopular government at Paris, but they have never assumed the direct
control of their own affairs.
Hence it is commonly remarked that while the general intelligence
of the French people is very high, their intelligence in political
matters is, comparatively speaking, very low. Some persons try to
explain this by a reference to peculiarities of race. But if we
Americans were to set about giving to the state governments things
to do that had better be done by counties and towns, and giving the
federal government things to do that had better be done by the states,
it would not take many generations to dull the keen edge of our
political capacity. We should lose it as inevitably as the most
consummate of pianists will lose his facility if he stops practising.
It is therefore a fact of cardinal importance that in the United
States the local governments of township, county, and city are left to
administer themselves instead of being administered by a great bureau
with its head at the state capital. In a political society thus
constituted from the beginning it has proved possible to build up
our Federal Union, in which the states, while for certain purposes
indissolubly united, at the same time for many other purposes retain
their self-government intact. As in the case of other aggregates, the
nature of the American political aggregate has been determined by the
nature of its political units.
[Sidenote: Vastness of the functions retained by the states in the
American Union.]
_Secondly_, let us observe how great are the functions retained
by our states under the conditions of our Federal Union. The
powers granted to our federal government, such as the control over
international questions, war and peace, the military forces, the
coinage, patents and copyrights, and the regulation of commerce
between the states and with foreign countries,--all these are powers
relating to matters that affect all the states, but could not be
regulated harmoniously by the separate action of the states. In order
the more completely to debar the states from meddling with such
matters, they are expressly prohibited from entering into agreements
with each other or with a foreign power; they cannot engage in war,
save in case of actual invasion or such imminent danger as admits of
no delay; without consent of Congress they cannot keep a military or
naval force in time of peace, or impose custom-house duties. Besides
all this they are prohibited from granting titles of nobility, coining
money, emitting bills of credit, making anything but gold and silver
coin a tender in payment of debts, passing bills of attainder, _ex
post facto_ laws, or laws impairing the obligation of contracts.
The force of these latter restrictions will be explained hereafter.
Such are the limitations of sovereignty imposed upon the states within
the Federal Union.
Compared with the vast prerogatives of the state legislatures, these
limitations seem small enough. All the civil and religious rights
of our citizens depend upon state legislation; the education of the
people is in the care of the states; with them rests the regulation
of the suffrage; they prescribe the rules of marriage, the legal
relations of husband and wife, of parent and child; they determine the
powers of masters over servants and the whole law of principal and
agent, which is so vital a matter in all business transactions; they
regulate partnership, debt and credit, insurance; they constitute all
corporations, both private and municipal, except such as specially
fulfill the financial or other specific functions of the federal
government; they control the possession, distribution, and use of
property, the exercise of trades, and all contract relations; and they
formulate and administer all criminal law, except only that which
concerns crimes committed against the United States, on the high seas,
or against the law of nations. Space would fail in which to enumerate
the particulars of this vast range of power; to detail its parts would
be to catalogue all social and business relationships, to examine all
the foundations of law and order.[13]
[Footnote 13: Woodrow Wilson, _The State: Elements of Historical and
Practical Politics_, p. 437.]
This enumeration, by Mr. Woodrow Wilson, is so much to the point that I
content myself with transcribing it. A very remarkable illustration of
the preponderant part played by state law in America is given by Mr.
Wilson, in pursuance of the suggestion of Mr. Franklin Jameson.[14]
Consider the most important subjects of legislation in England during
the present century, the subjects which make up almost the entire
constitutional history of England for eighty years. These subjects are
Catholic emancipation, parliamentary reform, the abolition of slavery,
the amendment of the poor-laws, the reform of municipal corporations,
the repeal of the corn laws, the admission of Jews to parliament, the
disestablishment of the Irish church, the alteration of the Irish land
laws, the establishment of national education, the introduction of the
ballot, and the reform of the criminal law. In the United States only
two of these twelve great subjects could be dealt with by the federal
government: the repeal of the corn laws, as being a question of national
revenue and custom-house duties, and the abolition of slavery, by virtue
of a constitutional amendment embodying some of the results of our Civil
War. All the other questions enumerated would have to be dealt with by
our state governments; and before the war that was the case with the
slavery question also. A more vivid illustration could not be asked for.
[Footnote 14: Jameson, "The Study of the Constitutional
History of the States" _J.H.U. Studies_, IV., v.]
How complete is the circle of points in which the state touches the
life of the American citizen, we may see in the fact that our
state courts make a complete judiciary system, from top to bottom
independent of the federal courts.[15] An appeal may be carried from
a state court to a federal court in cases which are found to involve
points of federal law, or in suits arising between citizens of
different states, or where foreign ambassadors are concerned. Except
for such cases the state courts make up a complete judiciary world of
their own, quite outside the sphere of the United States courts.
[Footnote 15: Independence of the state courts.]
[Sidenote: Constitution of the state courts.]
We have already had something to say about courts in connection with
those primitive areas for the administration of justice, the hundred
and the county. In our states there are generally four grades of
courts. There are, first, the _justices of the peace _, with
jurisdiction over "petty police offences and civil suits for trifling
sums." They also conduct preliminary hearings in cases where persons
are accused of serious crimes, and when the evidence seems to warrant
it they may commit the accused person for trial before a higher court.
The mayor's court in a city usually has jurisdiction similar to that
of justices of the peace. Secondly, there are _county_ and
_municipal courts_, which hear appeals from justices of the peace
and from mayor's courts, and have original jurisdiction over a more
important grade of civil and criminal cases. Thirdly, there are
_superior courts_, having original jurisdiction over the most
important cases and over wider of the state areas of country, so that
they do not confine their sessions to one place, but move about from
place to place, like the English _justices in eyre_. Cases are
carried up, on appeal, from the lower to the superior court. Fourthly,
there is in every state a _supreme court_, which generally has no
original jurisdiction, but only hears appeals from the decisions of
the other courts. In New York there is a "supremest" court, styled
the _court of appeals_, which has the power of revising sundry
judgments of the supreme court; and there is something similar in New
Jersey, Illinois, Kentucky, and Louisiana.[16]
[Footnote 16: Wilson. The State, pp. 509-513.]
[Sidenote: Elective and appointive judges.]
In the thirteen colonies the judges were appointed by the governor,
with or without the consent of the council, and they held office
during life or good behaviour. Among the changes made in our state
constitutions since the Revolution, there have been few more important
than those which have affected the position of the judges. In most of
the states they are now elected by the people for a term of years,
sometimes as short as two years. There is a growing feeling that this
change was a mistake. It seems to have lowered the general character
of the judiciary. The change was made by reasoning from analogy: it
was supposed that in a free country all offices ought to be elective
and for short terms. But the case of a judge is not really analogous
to that of executive officers, like mayors and governors and
presidents. The history of popular liberty is much older than the
history of the United States, and it would be difficult to point to
an instance in which popular liberty has ever suffered from the
life tenure of judges. On the contrary, the judge ought to be as
independent as possible of all transient phases of popular sentiment,
and American experience during the past century seems to teach us that
in the few states where the appointing of judges during life or good
behaviour has prevailed, the administration of justice has been better
than in the states where the judges have been elected for specified
terms. Since 1869 there has been a marked tendency toward lengthening
the terms of elected judges, and in several states there has been a
return to the old method of appointing judges by the governor, subject
to confirmation by the senate.[17] It is one of the excellent features
of our system of federal government, that the several states can thus
try experiments each for itself and learn by comparison of results.
When things are all trimmed down to a dead level of uniformity by the
central power, as in France, a prolific source of valuable experiences
is cut off and shut up.
[Footnote 17: For details, see the admirable monograph of Henry Hitchcock,
_American State Constitutions_, p. 53.]
QUESTIONS ON THE TEXT.
1. Modifications of state government during the present century:--
a. Property qualifications for office.
b. The distinction between the upper and the lower house.
c. The advantage in retaining a two-chambered legislature.
2. The suffrage:--
a. The persons to whom it is granted.
b. The qualifications established.
c. The persons excluded from its exercise.
3. The separation of the executive and legislative departments:--
a. The relation of the great executive officers to legislation in
Europe.
b. The work of legislation in the United States.
c. The most serious of the dangers that beset democratic
government.
d. Important safeguards against such a danger.
4. The state executive:--
a. The governor as a part of the legislature.
b. Officers always belonging to executive departments.
c. Officers frequently belonging to executive departments.
d. The relation of the governor to other elected executive
officers.
5. The ordinary functions of the governor:--
a. Advising the legislature.
b. Commanding the militia.
c. Pardoning criminals or commuting their sentences.
d. Vetoing acts of the legislature.
6. Why is the power to veto particular items in a bill appropriating
public money an important safeguard against corruption?
7. Local self-government in the United States left unimpaired:--
a. The extent of state supervision of towns and counties.
b. The spirit thus developed in American citizens.
8. A lesson from the symmetry of the French government:--
a. The departments and their administration.
b. The prefect and his duties.
c. The department council and its sphere of action.
d. The commune.
e. The French system contrasted with the American.
f. A common view of the political intelligence of the French.
g. The probable effect of excessive state control upon the
political intelligence of Americans.
9. The greatness of the functions retained by the states under
the federal government:--
a. Powers granted to the government of the United States.
b. The reason for granting such powers,
c. The powers denied to the states.
d. The reason for such prohibitions.
e. The vast range of powers exercised by the states.
f. The most important subjects of legislation in England for the past
eighty years.
g. The governments, state or national, to which these twelve
subjects would have fallen in the United States.
10. Speak of the independence of the state courts.
11. In what cases only may matters be transferred from them to
a federal court?
12. The constitution of the state courts:--
a. Justices of the peace; the mayor's court.
b. County and municipal courts.
c. The superior courts.
d. The supreme court.
e. Still higher courts in certain states.
13. The selection of judges and their terms of service:--
a. In the thirteen colonies.
b. In most of the states since the Revolution.
c. The reasons for a life tenure.
d. The tendency since 1869.
14. Mention a conspicuous advantage of our system of government over the
French.
SUGGESTIVE QUESTIONS AND DIRECTIONS.
1. Was there ever a charter government in your state? If so, where is
the charter at the present time? What is its present value? Try to see
it, if possible. Pupils of Boston and vicinity, for example, may
examine in the office of the secretary of state, at the state house, the
charter of King Charles (1629) and that of William and Mary (1692).
2. When was your state organized under its present government? If it is
not one of the original thirteen, what was its history previous to
organization; that is, who owned it and controlled it, and how came it
to become a state?
3. What are the qualifications for voting in your state?
4. What are the arguments in favour of an educational qualification for
voters (as, for example, the ability to read the Constitution of the
United States)? What reasons might be urged against such qualifications?
5. Who is the governor of your state? What political party supported him
for the position? For what ability or eminent service was he selected?
6. Give illustrations of the governor's exercise of the four functions
of advising, vetoing, pardoning, and commanding (consult the newspapers
while the legislature is in session).
7. Mention some things done by the governor that are not included
in the enumeration of his functions in the text.
8. Visit, if practicable, the State House. Observe the various offices,
and consider the general nature of the business done there. Attend a
session of the Senate or the House of Representatives. Obtain some
"orders of the day."
9. If the legislature is in session, follow its proceedings in the
newspapers. What important measures are under discussion? On what sort
of questions are party lines pretty sharply drawn? On what sort of
questions are party distinctions ignored?
10. Consult the book of general or public statutes, and report on
the following points:--
a. The magnitude of the volume.
b. Does it contain all the laws? If not, what are omitted?
c. Give some of the topics dealt with.
d. Where are the laws to be found that have been made since the printing
of the volume?
e. Are the originals of the laws in the volume? If not, where are they
and in what shape?
11. Is everybody expected to know all the laws?
12. Does ignorance of the law excuse one for violating it?
13. Suppose people desire the legislature to pass some law, as, for
example, a law requiring towns and cities to provide flags for
school-houses, how is the attention of the legislature secured? What are
the various stages through which the bill must pass before it can become
a law? Why should there be so many stages?
14. Give illustrations of the exercise of federal government, state
government, and local government, in your own town or city. Of which
government do you observe the most signs? Of which do you observe the
fewest signs? Of which government do the officers seem most sensitive to
local opinion?
15. Are the sessions of the legislature in your state annual or
biennial? What is the argument for each system?
For answers to numbers 16, 17, 18, and 19, consult the public statutes,
a lawyer, or some intelligent business man. A fair idea of the
successive steps in the courts may be obtained from a good unabridged
dictionary by looking up the technical terms employed in these
questions.
16. What is the difference between a civil action and a criminal?
a. In respect to the object to be gained in each?
b. In respect to the party that is the plaintiff?
c. In respect to the consequences to the defendant if the case goes
against him?
17. Give an outline of the procedure in a minor criminal action that is
tried without a jury in a lower court. Consider
(1) the complaint, (2) the warrant, (3) the return, (4) the recognizance,
(5) the subpoena, (6) the arraignment, (7) the plea, (8) the testimony,
(9) the arguments,(10) the judgment and sentence, and (11) the penalty and
its enforcement.
What is an appeal?--This procedure seems cumbrous, but it
is founded in common sense. What one of the foregoing steps, for
example, would you omit? Why?
18. Give an outline of the procedure in a criminal action that is tried
with a jury in a higher court. The action is begun in a lower court
where the first five stages are the same as in number 17. Then follow
(6) the examination of witnesses, (7) the binding over of the accused to
appear before the higher court for trial, (8) the sending of the
complaint and the proceedings thereon to the district or county
attorney, (9) the indictment, (10) the action of the grand jury upon the
indictment, (11) the challenging of jurors before the trial, (12) the
arraignment, (13) the plea, (14) the testimony, (15) the arguments, (16)
the charge to the jury, (17) the verdict, and (18) the sentence, with
its penalty and the enforcement of it. What are "exceptions?"--Why
should there be a jury in the higher court when there is none in the
lower? What is the objection to dispensing with any one of the foregoing
steps? Does this machinery make it difficult to punish crime? Why should
an accused person receive so much consideration?
19. Give an outline of the procedure in a minor civil action. Consider
(1) the writ, (2) the attachment, (3) the summons to the defendant, (4)
the return, (5) the pleading, (6) the testimony, (7) the arguments, (8)
the judgment or decision of the judge, and (9) the execution.--If the
action is conducted in a higher court, then a jury decides the question
at issue, the judge instructing the jurors in points of law.
20. Suppose an innocent man is tried for an alleged crime and
acquitted, has he any redress?
21. Is the enforcement of law complete and satisfactory in your
community?
22. What is your opinion of the general security of person and property
in your community?
23. Is there any connection between public sentiment about a law and the
enforcement of that law? If so, what is it?
24. Any one of the twelve subjects of legislation cited on page 177 may
be taken as a special topic. Consult any modern history of England.
25. Which do you regard as the more important possession for the
citizen,--an acquaintance with the principles and details of government
and law, or a law-abiding and law-supporting spirit? What reasons have
you for your opinion? Where is your sympathy in times of disorder, with,
those who defy the law or with those who seek to enforce it? (Suppose a
case in which you do not approve the law, and then answer.)
26. May you ever become an officer of the law? Would you as a citizen be
justified in withholding from an officer that obedience and moral
support which you as an officer might justly demand from every citizen?
BIBLIOGRAPHICAL NOTE.
The State.--For the founding of the several colonies, their charters,
etc., the student may profitably consult the learned monographs in
Winsor's _Narrative and Critical History of America_, 8 vols.,
Boston, 1886-89. A popular account, quite full in details, is given in
Lodge's _Short History of the English Colonies in America_,
N. Y., 1881. There is a fairly good account of the revision and
transformation of the colonial governments in Bancroft's _History of
the United States_, final edition, N.Y., 1886, vol. v. pp. 111-125.
The series of "American Commonwealths," edited by H.E. Scudder, and
published by Houghton, Mifflin & Co., will be found helpful. The
following have been published: Johnston, _Connecticut: a Study
of a Commonwealth-Democracy_, 1887; Roberts, _New York: the
Planting and Growth of the Empire State_, 2 vols., 1887; Browne,
_Maryland: the History of a Palatinate_, 2d ed., 1884; Cooke,
_Virginia: a History of the People_, 1883; Shaler, _Kentucky:
a Pioneer Commonwealth_, 1884; King, _Ohio: First Fruits of
the Ordinance of 1787_,1888; Dunn, _Indiana: a Redemption from
Slavery_, 1888; Cooley, _Michigan: a History of Governments_,
1885; Carr, _Missouri: a Bone of Contention_, 1888; Spring,
_Kansas: the Prelude to the War for the Union_, 1885; Royce,
_California: a Study of American Character_, 1886; Barrows,
_Oregon: the Struggle for Possession_, 1883.
In connection with the questions on page 183, the student is advised
to consult Dole's _Talks about Law: a Popular Statement of What
our Law is and How it is Administered_, Boston, 1887. This book
deserves high praise. In a very easy and attractive way it gives an
account of such facts and principles of law as ought to be familiarly
understood by every man and woman.
CHAPTER VII.
WRITTEN CONSTITUTIONS.
[Sidenote: In the American state there is a power above the
legislature.]
Toward the close of the preceding chapter[1] I spoke of three points
especially characteristic of the American state, and I went on to
mention two of them. The third point which I had in mind is so
remarkable and important as to require a chapter all to itself. In the
American state the legislature is not supreme, but has limits to its
authority prescribed by a written document, known as the Constitution;
and if the legislature happens to pass a law which violates the
constitution, then whenever a specific case happens to arise in which
this statute is involved, it can be brought before the courts, and
the decision of the court, if adverse to the statute, annuls it and
renders it of no effect. The importance of this feature of civil
government in the United States can hardly be overrated. It marks a
momentous advance in civilization, and it is especially interesting as
being peculiarly American. Almost everything else in our fundamental
institutions was brought by our forefathers in a more or less highly
developed condition from England; but the development of the written
constitution, with the consequent relation of the courts to the
law-making power, has gone on entirely upon American soil.
[Footnote 1: See above, p. 172.]
[Sidenote: Germs of the idea of a written constitution.]
[Sidenote: Our indebtedness to the Romans.]
[Sidenote: Mediaeval charters.]
The germs of the written constitution existed a great while ago.
Perhaps it would not be easy to say just when they began to exist.
It was formerly supposed by such profound thinkers as Locke and such
persuasive writers as Rousseau, that when the first men came together
to live in civil society, they made a sort of contract with one
another as to what laws they would have, what beliefs they would
entertain, what customs they would sanction, and so forth. This
theory of the Social Contract was once famous, and exerted a notable
influence on political history, and it is still interesting in the
same way that spinning-wheels and wooden frigates and powdered wigs
are interesting; but we now know that men lived in civil society,
with complicated laws and customs and creeds, for many thousand years
before the notion had ever entered anybody's head that things could
be regulated by contract. That notion we owe chiefly to the ancient
Romans, and it took them several centuries to comprehend the idea and
put it into practice. We owe them a debt of gratitude for it. The
custom of regulating business and politics and the affairs of life
generally by voluntary but binding agreements is something without
which we moderns would not think life worth living. It was after the
Roman world--that is to say, Christendom, for in the Middle Ages the
two terms were synonymous--had become thoroughly familiar with the
idea of contract, that the practice grew up of granting written
charters to towns, or monasteries, or other corporate bodies. The
charter of a mediaeval town was a kind of written contract by which
the town obtained certain specified immunities or privileges from the
sovereign or from a great feudal lord, in exchange for some specified
service which often took the form of a money payment. It was common
enough for a town to buy liberty for hard cash, just as a man might
buy a farm. The word _charter_ originally meant simply a paper or
written document, and it was often applied to deeds for the transfer
of real estate. In contracts of such importance papers or parchment
documents were drawn up and carefully preserved as irrefragable
evidences of the transaction. And so, in quite significant phrase the
towns zealously guarded their charters as the "title-deeds of their
liberties."
[Sidenote: The "Great Charter" (1215).]
After a while the word charter was applied in England to a particular
document which specified certain important concessions forcibly wrung by
the people from a most unwilling sovereign. This document was called
_Magna Charta_, or the "Great Charter," signed at Runnymede, June 15,
1215, by John, king of England. After the king had signed it and gone
away to his room, he rolled in a mad fury on the floor, screaming
curses, and gnawing sticks and straw in the impotence of his, wrath.[2]
Perhaps it would be straining words to call a transaction in which the
consent was so one-sided a "contract," but the idea of Magna Charta was
derived from that of the town charters with which people were already
familiar. Thus a charter came to mean "a grant made by the sovereign
either to the whole people or to a portion of them, securing to them the
enjoyment of certain rights." Now in legal usage a charter differs from
a constitution in this, that the former is granted by the sovereign,
while the latter is established by the people themselves: both are the
fundamental law of the land.[3] a The distinction is admirably
expressed, but in history it is not always easy to make it. Magna Charta
was in form a grant by the sovereign, but it was really drawn up by the
barons, who in a certain sense represented the English people; and
established by the people after a long struggle which was only in its
first stages in John's time. To some extent it partook of the nature of
a written constitution.
[Footnote 2: Green, _Hist. of the English People_, vol. i. p.
248.]
[Footnote 3: Bouvier, _Law Dictionary_, 12th ed., vol. i. p.
259.]
[Sidenote: The "Bill of Rights" (1689).]
Let us now observe what happened early in 1689, after James II had
fled from England. On January 28th parliament declared the throne
vacant. Parliament then drew up the "Declaration of Rights," a
document very similar in purport to the first eight amendments to
our Federal Constitution, and on the 13th of February the two houses
offered the crown to William and Mary on condition of their accepting
this declaration of the "true, ancient, and indubitable rights of the
people of this realm." The crown having been accepted on these terms,
parliament in the following December enacted the famous "Bill of
Rights," which simply put their previous declaration into the form of
a declaratory statute. The Bill of Rights was not--even in form--a
grant from a sovereign; it was an instrument framed by the
representatives of the people, and without promising to respect
it William and Mary could no more have mounted the throne than a
president of the United States could be inducted into office if he
were to refuse to take the prescribed oath of allegiance to the
Federal Constitution. The Bill of Rights was therefore, strictly
speaking, a piece of written constitution; it was a constitution as
far as it went.
[Sidenote: Foreshadowing of the American idea by Sir Harry Vane
(1656).]
The seventeenth century, the age when the builders of American
commonwealths were coming from England, was especially notable in
England for two things. One was the rapid growth of modern commercial
occupations and habits, the other was the temporary overthrow of
monarchy, soon followed by the final subjection of the crown to
parliament. Accordingly the sphere of contract and the sphere of
popular sovereignty were enlarged in men's minds, and the notion of a
written constitution first began to find expression. The "Instrument
of Government" which in 1653 created the protectorate of Oliver
Cromwell was substantially a written constitution, but it emanated
from a questionable authority and was not ratified. It was drawn up
by a council of army officers; and "it broke down because the first
parliament summoned under it refused to acknowledge its binding
force." [4] The dissolution of this parliament accordingly left Oliver
absolute dictator. In 1656, when it seemed so necessary to decide what
sort of government the dictatorship of Cromwell was to prepare the way
for, Sir Harry Vane proposed that a _national convention_ should
be called for drawing up a written constitution.[5] The way in which
he stated his case showed that he had in him a prophetic foreshadowing
of the American idea as it was realized in 1787. But Vane's ideas were
too far in advance of his age to be realized then in England. Older
ideas, to which men were more accustomed, determined the course of
events there, and it was left for Americans to create a government by
means of a written constitution. And when American statesmen did so,
they did it without any reference to Sir Harry Vane. His relation to
the subject has been discovered only in later days, but I mention him
here in illustration of the way in which great institutions grow. They
take shape when they express the opinions and wishes of a multitude
of persons; but it often happens that one or two men of remarkable
foresight had thought of them long beforehand.
[Footnote 4: Gardiner, _Constitutional Documents of the Puritan
Revolution_, p. lx.]
[Footnote 5: See Hosmer's _Young Sir Henry Vane_, pp.
432-444,--one of the best books ever written for the reader who wishes
to understand the state of mind among the English people in the crisis
when they laid the foundations of the United States.]
[Sidenote: The Mayflower compact(1620).]
In America the first attempts at written constitutions were in the
fullest sense made by the people, and not through representatives but
directly. In the Mayflower's cabin, before the Pilgrims had landed on
Plymouth rock, they subscribed their names to a compact in which they
agreed to constitute themselves into a "body politic," and to enact such
laws as might be deemed best for the colony they were about to
establish; and they promised "all due submission and obedience" to such
laws. Such a compact is of course too vague to be called a constitution.
Properly speaking, a written constitution is a document which defines
the character and powers of the government to which its framers are
willing to entrust themselves. Almost any kind of civil government might
have been framed under the Mayflower compact, but the document is none
the less interesting as an indication of the temper of the men who
subscribed their names to it.
[Sidenote: The "Fundamental Orders of Connecticut" (1639).]
The first written constitution known to history was that by which the
republic of Connecticut was organized in 1639. At first the affairs
of the Connecticut settlements had been directed by a commission
appointed by the General Court of Massachusetts, but on the 14th of
January, 1639, all the freemen of the three river towns--Windsor,
Hartford, and Wethersfield--assembled at Hartford, and drew up a
written constitution, consisting of eleven articles, in which the
frame of government then and there adopted was distinctly described.
This document, known as the "Fundamental Orders of Connecticut",
created the government under which the people of Connecticut lived for
nearly two centuries before they deemed it necessary to amend it. The
charter granted to Connecticut by Charles II. in 1662 was simply a
royal recognition of the government actually in operation since the
adoption of the Fundamental Orders.
[Sidenote: Germinal development of the colonial charter toward the
modern state constitution.]
In those colonies which had charters these documents served, to a
certain extent, the purposes of a written constitution. They limited the
legislative powers of the colonial assemblies. The question sometimes
came up as to whether some statute made by the assembly was not in
excess of the powers conferred by the charter. This question usually
arose in connection with some particular law case, and thus came before
the courts for settlement,--first before the courts of the colony;
afterwards it might sometimes be carried on appeal before the Privy
Council in England. If the court decided that the statute was in
transgression of the charter, the statute was thereby annulled.[6] The
colonial legislature, therefore, was not a supreme body, even within the
colony; its authority was restricted by the terms of the charter. Thus
the Americans, for more than a century before the Revolution, were
familiarized with the idea of a legislature as a representative body
acting within certain limits prescribed by a written document. They had
no knowledge or experience of a supreme legislative body, such as the
House of Commons has become since the founders of American states left
England. At the time of the Revolution, when the several states framed
new governments, they simply put a written constitution into the
position of supremacy formerly occupied by the charter. Instead of a
document expressed in terms of a royal grant, they adopted a document
expressed in terms of a popular edict. To this the legislature must
conform; and people were already somewhat familiar with the method of
testing the constitutionality of a law by getting the matter brought
before the courts. The mental habit thus generated was probably more
important than any other single circumstance in enabling our Federal
Union to be formed. Without it, indeed, it would have been impossible to
form a durable union.
[Footnote 6: Bryce, _American Commonwealth_, vol. i. pp. 243,
415.]
[Sidenote: Abnormal development of the state constitution, encroaching
upon the province of the legislature.]
[Sidenote: The Swiss "Referendum" 196]
Before pursuing this subject, we may observe that American state
constitutions have altered very much in character since the first part
of the present century. The earlier constitutions were confined to a
general outline of the organization of the government. They did not
undertake to make the laws, but to prescribe the conditions under
which laws might be made and executed. Recent state constitutions
enter more and more boldly upon the general work of legislation. For
example, in some states they specify what kinds of property shall be
exempt from seizure for debt, they make regulations as to railroad
freight-charges, they prescribe sundry details of practice in the
courts, or they forbid the sale of intoxicating liquors. Until
recently such subjects would have been left to the legislatures, no
one would have thought of putting them into a constitution. The motive
in so doing is a wish to put certain laws into such a shape that it
will be difficult to repeal them. What a legislature sees fit to enact
this year it may see fit to repeal next year. But amending a state
constitution is a slow and cumbrous process. An amendment may be
originated in the legislature, where it must secure more than a mere
majority--perhaps a three fifths or two thirds vote--in order to pass;
in some states it must be adopted by two successive legislatures,
perhaps by two thirds of one and three fourths of the next; in some
states not more than one amendment can be brought before the same
legislature; in some it is provided that amendments must not be
submitted to the people oftener than once in five years; and so
on. After the amendment has at length made its way through the
legislature, it must be ratified by a vote of the people at the next
general election. Another way to get a constitution amended is to call
a convention for that purpose. In order to call a convention, it is
usually necessary to obtain a two thirds vote in the legislature; but
in some states the legislature is required at stated intervals to
submit to the people the question of holding such a convention, as
in New Hampshire every seven years; in Iowa, every ten years; in
Michigan, every sixteen years; in New York, Ohio, Maryland, and
Virginia, every twenty years.[7] A convention is a representative
body elected by the people to meet at some specified time and
place for some specified purpose, and its existence ends with the
accomplishment of that purpose. It is in this occasional character
that the convention differs from an ordinary legislative assembly.
With such elaborate checks against hasty action, it is to be presumed
that if a law can be once embodied in a state constitution, it will be
likely to have some permanence. Moreover, a direct vote by the people
gives a weightier sanction to a law than a vote in the legislature.
There is also, no doubt, a disposition to distrust legislatures and in
some measure do their work for them by direct popular enactment. For
such reasons some recent state constitutions have come almost to
resemble bodies of statutes. Mr. Woodrow Wilson suggestively compares
this kind of popular legislation with the Swiss practice known as the
_Referendum_; in most of the Swiss cantons an important act of
the legislature does not acquire the force of law until it has been
_referred_ to the people and voted on by them. "The objections
to the, _referendum_," says Mr. Wilson, "are, of course, that it
assumes a discriminating judgment and a fullness of information on the
part of the people touching questions of public policy which they do
not often possess, and that it lowers the sense of responsibility on
the part of legislators." [8] Another serious objection to our recent
practice is that it tends to confuse the very valuable distinction
between a constitution and a body of statutes, to necessitate a
frequent revision of constitutions, and to increase the cumbrousness
of law-making. It would, however, be premature at the present time to
pronounce confidently upon a practice of such recent origin. It is
clear that its tendency is extremely democratic, and that it implies
a high standard of general intelligence and independence among the
people. If the evils of the practice are found to outweigh its
benefits, it will doubtless fall into disfavour.
[Footnote 7: See Henry Hitchcock's admirable monograph, _American
State Constitutions_, p. 19.]
[Footnote 8: Wilson. The State, p. 490.]
QUESTIONS ON THE TEXT. What is to be said with regard to the following
topics?
I. A power above the legislature:--
a. The constitution.
b. The relation of the courts to laws that violate the constitution.
c. The importance of this relation.
d. The American origin of the written constitution.
2. The germs of the idea of a written constitution:--
a. The theory of a "social contract."
b. The objection to this theory.
c. Roman origin of the idea of contract.
3. Mediaeval charters:--
a. The charter of a town.
b. The word _charter_.
c. Magna Charta.
d. The difference between a charter and a constitution.
e. The form of Magna Charta as contrasted with its essential nature.
4. Documents somewhat resembling written constitutions:--
a. The Declaration of Rights.
b. The Bill of Rights.
5. The foreshadowing of the American idea of written constitutions:--
a. Two conditions especially notable in England in the seventeenth
century.
b. The influence of these conditions on popular views of government.
c. The "Instrument of Government."
d. Sir Harry Vane's proposition.
e. Why allude to Vane's scheme when nothing came of it?
6. Early suggestions of written constitutions in America:--
a. The compact on the Mayflower.
b. Wherein the compact fell short of a written constitution.
c. The "Fundamental Orders of Connecticut."
7. The development of the colonial charter into a written constitution:--
a. The limitation of the powers of colonial assemblies.
b. The decision of questions relating to the transgression of a charter
by a colonial legislature.
c. The colonial assembly as contrasted with the House of
Commons.
d. The difference between the written constitution and the
charter for which it was substituted.
e. The readiness of the people to adopt written constitutions.
8. The extensive development of the written constitution in
some states:--
a. The simplicity of the earlier constitutions.
b. Illustrations of the legislative tendencies of later constitutions.
c. The motive for such extension of a constitution.
d. The difficulty of amending a constitution.
e. The legislative method of amendment.
f. The convention method of amendment.
g. The presumed advantage of embodying laws in the constitution.
h. A comparison with the Swiss Referendum.
i. Objections to the Swiss Referendum.
j. Other objections to the practice of putting laws into the
constitution.
SUGGESTIVE QUESTIONS AND DIRECTIONS.
1. Do you belong to any society that has a constitution? Has the society
rules apart from the constitution? Which may be changed the more
readily? Why not put all the rules into the constitution?
2. Read the constitution of your state in part or in full. Give some
account of its principal divisions, of the topics it deals with, and its
magnitude or fullness. Are there any amendments? If so, mention two or
three, and give the reasons for their adoption. Is there any declaration
of rights in it? If so, what are some of the rights declared, and whose
are they said to be?
3. Where is the original of your state constitution kept? What sort of
looking document do you suppose it to be? Where would you look for a
copy of it? If a question arises in any court about the interpretation
of the constitution, must the original be produced to settle the wording
of the document?
4. Has any effort been made in your state to put into the constitution
matters that have previously been subjects of legislative action? If so,
give an account of the effort, and the public attitude towards it.
5. Which is preferable,--a constitution that commands the approval of
the people as a whole or that which has the support of a dominant
political party only?
6. Suppose it is your personal conviction that a law is
unconstitutional, may you disregard it? What consequences might ensue
from such disregard?
7. May people honestly and amicably differ about the interpretation of
the constitution or of a law, in a particular case? If important
interests are dependent on the interpretation, how can the true one be
found out? Does a lawyer's opinion settle the interpretation? What value
has such an opinion? Where must people go for authoritative and final
interpretations of the laws? Can they get such interpretations by simply
asking for them?
8. The constitution of New Hampshire provides that when the governor
cannot discharge the duties of his office, the president of the senate
shall assume them. During the severe sickness of a governor recently,
the president of the senate hesitated to act in his stead; it was not
clear that the situation was grave enough to warrant such a course.
Accordingly the attorney-general of the state brought an action against
the president of the senate for not doing his duty; the court considered
the situation, decided against the president of the senate, and ordered
him to become acting governor. Why was this suit necessary? Was it
conducted in a hostile spirit? Wherein did the decision help the state?
Wherein did it help the defendant? Wherein may it possibly prove helpful
in the future history of the state?
9. Mention particular things that the governor, the legislature, and the
judiciary of your state have done or may do. Then find the section or
clause or wording in your state constitution that gives authority for
each of these things. For example, read the particular part that
authorizes your legislature:--
a. To incorporate a city.
b. To compel children to attend school.
c. To buy uniforms for a regiment of soldiers.
d. To establish a death penalty.
e. To send a committee abroad to study a system of waterworks.
10. Trace the authority of a school-teacher, a policeman, a selectman, a
mayor, or of any public officer, back to some part of your constitution.
11. Mention any parts of your constitution that seem general and
somewhat indefinite, and that admit, therefore, of much freedom in
interpretation.
12. Show how the people are, in one aspect, subordinate to the
constitution; in another, superior to it.
BIBLIOGRAPHICAL NOTE.
Written Constitutions.--Very little has been written or published with
reference to the history of the development of the idea of a written
constitution. The student will find some suggestive hints in Hannis
Taylor's _Origin and Growth of the English Constitution_, vol. i,
Boston, 1889. See Henry Hitchcock's _American State Constitutions; a
Study of their Growth_, N.Y., 1887, a learned and valuable essay. See
also _J.H.U. Studies_, I., xi., Alexander Johnston, _The Genesis of a
New England State (Connecticut)_; III., ix.-x., Horace Davis, _American
Constitutions_; also Preston's _Documents Illustrative of American
History_, 1606-1863, N.Y., 1886; Stubbs, _Select Charters and other
Illustrations of English Constitutional History_, Oxford, 1870;
Gardiner's _Constitutional Documents of the Puritan Revolution_, Oxford,
1888.
CHAPTER VIII.
THE FEDERAL UNION.
Section 1. _Origin of the Federal Union._
Having now sketched the origin and nature of written constitutions, we
are prepared to understand how by means of such a document the
government of our Federal Union was called into existence. We have
already described so much of the civil government in operation in the
United States that this account can be made much more concise than if we
had started at the top instead of the bottom and begun to portray our
national government before saying a word about states and counties and
towns. Bit by bit the general theory of American self-government has
already been set before the reader. We have now to observe, in
conclusion, what a magnificent piece of constructive work has been
performed in accordance with that general theory. We have to observe the
building up of a vast empire out of strictly self-governing elements.
[Sidenote: English institutions in all the colonies.]
There was always one important circumstance in favour of the union of
the thirteen American colonies into a federal nation. The inhabitants
were all substantially one people. It is true that in some of the
colonies there were a good many persons not of English ancestry, but
the English type absorbed and assimilated everything else.
All spoke the English language, all had English institutions. Except
the development of the written constitution, every bit of civil
government described in the preceding pages came to America directly
from England, and not a bit of it from any other country, unless by
being first filtered through England. Our institutions were as English
as our speech. It was therefore comparatively easy for people in one
colony to understand people in another, not only as to their words but
as to their political ideas. Moreover, during the first half of the
eighteenth century, the common danger from the aggressive French
enemy on the north and west went far toward awakening in the thirteen
colonies a common interest. And after the French enemy had been
removed, the assertion by parliament of its alleged right to tax the
Americans threatened all the thirteen legislatures at once, and thus
in fact drove the colonies into a kind of federal union.
[Sidenote: The New England confederacy (1643-84).]
[Sidenote: Albany Congress(1754).]
[Sidenote: Stamp Act Congress (1765).]
Confederations among states have generally owed their origin, in
the first instance, to military necessities. The earliest league in
America, among white people at least, was the confederacy of New
England colonies formed in 1643, chiefly for defence against the
Indians. It was finally dissolved amid the troubles of 1684, when the
first government of Massachusetts was overthrown. Along the Atlantic
coast the northern and the southern colonies were for some time
distinct groups, separated by the unsettled portion of the central
zone. The settlement of Pennsylvania, beginning in 1681, filled this
gap and made the colonies continuous from the French frontier of
Canada to the Spanish frontier of Florida. The danger from France
began to be clearly apprehended after 1689, and in 1698 one of the
earliest plans of union was proposed by William Penn. In 1754, just
as the final struggle with France was about to begin, there came
Franklin's famous plan for a permanent federal union; and this plan
was laid before a congress assembled at Albany for renewing the
alliances with the Six Nations.[1] Only seven colonies were
represented in this congress. Observe the word "congress." If it
had been a legislative body it would more likely have been called
a "parliament." But of course it was nothing of the sort. It was a
diplomatic body, composed of delegates representing state governments,
like European congresses,--like the Congress of Berlin, for example,
which tried to adjust the Eastern Question in 1878. Eleven years after
the Albany Congress, upon the news that parliament had passed the
Stamp Act, a congress of nine colonies assembled at New York in
October, 1765, to take action thereon.
[Footnote 1: Franklin's plan was afterward submitted to the several
legislatures of the colonies, and was everywhere rejected because the
need for union was nowhere strongly felt by the people.]
[Sidenote: Committees of Correspondence (1772-75).]
Nine years elapsed without another congress. Meanwhile the political
excitement, with occasional lulls, went on increasing, and some sort
of cooperation between the colonial governments became habitual. In
1768, after parliament had passed the Townshend revenue acts, there
was no congress, but Massachusetts sent a circular letter to the other
colonies, inviting them to cooperate in measures of resistance, and
the other colonies responded favourably. In 1772, as we have seen,
committees of correspondence between the towns of Massachusetts acted
as a sort of provisional government for the commonwealth. In 1773
Dabney Carr, of Virginia, enlarged upon this idea, and committees of
correspondence were forthwith instituted between the several colonies.
Thus the habit of acting in concert began to be formed. In 1774,
after parliament had passed an act overthrowing the government of
Massachusetts, along with other offensive measures, a congress
assembled in September at Philadelphia, the city most centrally
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