VI ESTABLISHMENT OF STATE CONSTITUTIONS In short, these legislators derive their power from the constitution, how then can they change it, without destroying the foundation of their authority? (M. de Vattel, The Law of Nations; or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns, 1758, Translated from the French Vol. I, 1760, Book 1, Chapter III, § 34, p. 18.) To examine the Union before we have studied the State would be to adopt a method filled with obstacles. . . . The great political principles which now govern American society undoubtedly took their growth in the State. (Alexis de Tocqueville, De la Démocratie en Amérique, 2 Vols., 1835, Vol. I, p. 80.) "At a meeting of the Inhabitants of the Town of Concord being free and Twentyone years of age and upward, upon adjournment on the twentyfirst Day of October, 1776, Ephraim Wood Junr being Moderator, Voted unanimously that the Present House of Representatives is not a proper Body to form a Constitution for this State. And Voted to Chuse a Committee of five men to make answer to the Question Proposed by the House of Representatives of this State and to Give the Reasons why the Town thinks them not a suitable body for that Purpas, the persons following was Chosen the Committee above mentioned, viz, Ephraim Wood Junr, Mr. Nathan Bond, Col. James Barrett, Col. John Buttrick, and James Barrett esqr. And the Committee Reported the following Draft which being Read several times over for Consideration it then was Read Resolve by Resolve and accepted unanimously in a very full Town meeting - the Reasones are as followes "Resolved 1st, that this State being at Present destitute of a properly established form of Government, it is absolutely necessary that one should be immediately formed and established. "Resolved secondly that the supreme Legislative, Either in their proper capacity or in Joint Committee are by no means a Body Proper to form & Establish a Constitution or form of Government for Reasones following, viz-first Because we conceive that Constitution in its proper Idea intends a system of principals established to secure the subject in the Possession of and enjoyment of their Rights & Privileges against any encrouchment of the Governing Part. Secondly Because the same Body that forms a Constitution have of Consequence a power to alter it-thirdly Because a Constitution alterable by the Supreme Legislative is no security at all to the subject against the encrouchment of the Governing part on any or on all their Rights and Privileges. "Resolved thirdly that it appears to this Town highly expidient that a Convention or Congress be immediately chosen to form and establish a Constitution, by the Inhabitants of the Respective Towns in this State being free and Twentyone years and upward, in Proportion as the Representatives of this State were formerly chosen; the Convention or Congress not to consist of a greater number than the house of assembly of this State heretofore might consist of, except that Each Town & District shall have Liberty to send one Representative; or otherwise as shall appear meet to the Inhabitants of this State in General. "Resolved 4ly. That when the Convention or Congress have formed a Constitution, they adjourn for a short time, and publish their Proposed Constitution for the Inspection and Remarks of the Inhabitants of this State. "Resolved 5ly. That the Honble. House of assembly of this State be Desired to recommend it to the Inhabitants of this State to Proceed to Chuse a Convention or Congress for the Purpas above mentioned as soon as possible. Signed by order of the Committee Ephraim Wood Ju Chairman, and the meeting was Desolved by the Moderator." (Roger Sherman Hoar, The Invention of Constitutional Conventions, 1918, in The Constitutional Review, vol. 2, pp. 99–100.) The elements of the British constitution, which the American people claimed as their inheritance, were not so much the customary forms which entered into the structure of the British government as those chartered privileges which might serve to protect them from the supervision and interference of autocratic power. What they most desired was to be let alone and to work out their own political salvation. And it was precisely when and where they were least hampered by foreign control, and least influenced by foreign models, that they developed those political features which have become the most distinctive characteristics of the American constitutional system. (William C. Morey, The First State Constitutions, Annals of the American Academy of Political and Social Science, 1893, Vol. 4, p. 232.) The American colonists inherited the instincts of the English race. But under new circumstances they were called upon to work out problems which were peculiar to their own political life; and as a consequence of this we find that the constitutional system which grew up on this continent was an American and not a European product. Even those institutions which seem to have a general similarity to those which are foreign have here acquired specific characteristics which distinguish them from those belonging to any foreign country. (William C. Morey, The First State Constitutions, Annals of the American Academy of Political and Social Science, 1893, Vol. 4, pt. 1, p. 203.) The first State constitutions were in their main features the direct descendants of the colonial governments, modified to_the_extent necessary to bring them into harmony, with the republican spirit of the people. Every State, either in a preamble or in a separate declaration of rights, prefaced its constitution by a statement of the chartered rights upon which it had always insisted; and many of them also declared in general terms the democratic principles which their experience and reason had taught them and which had been partly realized in their previous governments. (William C. Morey, The First State Constitutions, Annals of the American Academy of Political and Social Science, 1893, Vol. 4, pt. 1, p. 219.) In a previous paper published in this journal it was claimed that the real continuity in the growth of American constitutional law could be seen only by tracing: first, how the charters of the English trading companies were transformed into the organic laws of the early colonies; second, how the organic laws of the colonies were translated into the constitutions of the original States; and, finally, how the original State constitutions contributed to the Constitution of the Federal Union. (William C. Morey, The First State Constitutions, Annals of the American Academy of Political and Social Science, 1893, Vol. 4, p. 202.) In applying the historical method to the study of the American political system it is not enough to trace the origin and growth of the various branches of the federal government. The origin of the forms of the federal government presents no great historical difficulties to one who has carefully studied the constitutional history of the early.States and colonies. He finds that the central government of the United States, in its general structure and its various branches, is scarcely more than a reproduction on a higher plane of the government forms existing in the previous States, and more remotely in the early colonies. (William C. Morey, The Sources of American Federalism, American Academy of Political and Social Sciences, 1895, Vol. 6, p. 197.) "The powers of the states depend on their own constitution; the people of every state had the right to modify and restrain them according to their own views of policy or principle; and they remain unaltered and unimpaired, except so far as they were granted to the government of the United States. These deductions have been positively recognised by the tenth amendment." 1 Wh. 325. "The powers retained by the states, proceed not from the people of America, but from the people of the several states, and remain after the adoption of the constitution what they were before, except so far as they may be abridged by that instrument." 4 Wh. 193. S. P.; 5 Wh. 17, 54; 9 Wh. 203, 9. "In our system, the legislature of a state is the supreme power; in all cases where its action is not restrained by the constitution of the United States.' 12 Wh. 347. "Its jurisdiction is coextensive with its territory, coextensive with its legislative power," 3. Wh. 387; “and subject to this grant of power, adheres to the territory as a portion of sovereignty not yet "The given away." The residuary powers of legislation are still in the state. Ib. 389. sovereignty of a state extends to every thing which exists by its own authority, or is introduced by its permission." 6 Wh. 429: 4 Pet. 564. (Mr Justice Baldwin. A General_View of the Origin and Nature of the Constitution and Government of the United States, 1837, pp. 14-15.) CHAPTER VI ESTABLISHMENT OF STATE CONSTITUTIONS Impending WHEN the members of the Second Continental Congress assembled in Revolution Philadelphia on May 10, 1775, the King's troops and the provincials had met at Lexington and Concord on April 19, 1775, with the result that the adventurous sons of liberty were thronging to the aid of Boston. Here on the 17th of June of that year, the British troops were worsted at Bunker Hill, only to reform and to carry the heights. Here they were hemmed in and held in check by the volunteers from different parts of the country, soon to be commanded and ultimately led to victory by George Washington, the first Commander in Chief of the American Armies. These events made a great impression upon the members of Congress, as little by little news from the north reached their ears. What there took place on a large scale was taking place on a smaller scale in the different colonies. Resistance was offered to the royal authority, its officials were driven out by local leaders, and legitimate government in the former sense of the term ceased to exist. Prevent The colonies, soon to be States, were anxious as to the course they should take, and looked to the Congress for advice, as the one central, although a revolutionary body, which could keep in touch with the continent and suggest, if it could not command, what should be done by each in the interest of the whole. The far sighted foresaw independence, but the im- Desire to mediate problem before them was to replace the old by new authority, and Anarchy to check anarchy, which often precedes as well as follows revolution, by local government. Feeling and fearing the absence of authority, New Hampshire asked permission of the Congress "to regulate its internal police," and on November 3rd that body recommended the provincial convention of New Hampshire" to call a full and free representation of the people, and that the representatives, if they think it necessary, establish such a form of government, as, in their judgment, will best produce the happiness of the people, and most effectually secure peace and good order in the province, during the continuance of the present dispute between G[reat] Britain and the colonies." 1 The next day the Congress gave similar advice to South Carolina, and, with or without advice, other colonies began to take action.2 But the approach of independence made general concerted action advis 1 Journals of the Continental Congress, Vol. iii, p. 319. 2 Ibid., pp. 326–7. Recommendation of Congress able, and therefore, on May 15, 1776, the Congress resolved "that it be recommended to the respective assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.”1 Therefore the colonies which heretofore had not formed local governments now took steps to do so, transforming the charter of the colony into the constitution of the State in the light of their experience and according to the needs which that experience had disclosed. They were their own agents and had a free hand. They did not need to wrangle with the Crown about the terms, for the Crown was excluded from their deliberations. Nor did they need to conform to the views of the Congress as to the provisions of their constitutions, for the Congress, while it could recommend, could not command. The ideas, therefore, which had slowly taken shape in the colonies and which had approved themselves in practice, or which were thought to be advisable, were now incorporated in the constitutions of the States. For this reason the constitutions can be taken as the solemn and formal expression of their views on government during the decade between the Declaration of Independence and the meeting of the Annapolis Convention of representatives of five States, which recommended the Congress to call a convention of all the States to frame an instrument of government which should be a constitution for the States in union and a constitution for each of the States considered separately. The leaders of opinion in each of the colonies preserved those provisions of the charters, or, in the absence of a charter, the royal instructions, which met with the approval of their constituents, together with the views generally obtaining, and transferred and incorporated them in the constitutions of each of the States. The leaders of opinion, who had either framed or had had a hand either in the framing or in the administration of these instruments of government, or who had lived under these constitutions and were therefore familiar with their provisions, were chosen to represent their States in the convention of the States called to meet in Philadelphia on the second Monday of May, 1787, to revise the Articles of Confederation. Because they drafted a constitution instead of contenting themselves with a revision of the Articles, their assembly is affectionately called the Constitutional Convention, although it would with equal propriety be called, as it often is, the Federal Convention, as, in view of the facts, it should be termed the international conference of the American States. As in the State conventions so in the international conference, the leaders 1 Journals of the Continental Congress, Vol. iv, p. 342, Session of May 10. Political of opinion transferred such of the Articles of Confederation as had justified American themselves, such of the provisions of the State constitutions as seemed ap- Backgr plicable to the new instrument of general government, and incorporated their terms in the Constitution of the United States. It is therefore important to consider in this place and in this connection the fundamental conceptions of the colonial charters and of the State constitutions, in order that we may understand the political attitude and mental equipment of the delegates meeting in conference in Philadelphia. of Charters For the view that the States had a free hand, that they naturally and inevit- Influence ably formed the kind of government they wanted, that in so doing they modified the charter in the form and to the extent which they thought necessary, using it, however, as the basis of discussion, as they had grown up under it and it was, as it were, bone of their bone and flesh of their flesh, we need only turn to Connecticut and Rhode Island, without indulging in speculation upon this matter. These two colonies were so content with their charters that they did not form constitutions, in response to the recommendation of Congress of May 15, 1776, but contented themselves with the change of a few words or phrases in their respective charters made necessary by the expulsion of the Crown and the assumption of sovereignty on the part of the State, until, in 1818, the people of Connecticut formed their first constitution, and until 1842, when the people of Rhode Island formed their first. The example of Massachusetts will show that, where the charter was not retained, as was the case in the other colonies possessed of one upon the outbreak of the Revolution, the leaders of opinion in the different States nevertheless took it as the basis, omitting the provisions to which they objected or which were inapplicable, inserting others that met their desires or the needs of their constituents, while preserving the general wording with which they were familiar. This can be made very clear by comparing the language of the charter dealing with the legislative powers of the province with the corresponding section of the commonwealth of Massachusetts, adopted by the people thereof in 1780. This constitution was said at the time to be the best of the State constitutions, and with amendments it is still in force as the oldest of all written constitutions. This illustration was used for this purpose by one who has given much thought to the subject,1 and who chose it, as he said, almost at random. By the simple device of placing in parallel columns the provisions of the charter and of the constitution dealing with legislative powers, it is evident to the 1 Brooks Adams, The Emancipation of Massachusetts, 1887, pp. 304-6. Of interest in this connection is Charles Deane, The Forms in Issuing Letters-Patent by the Crown of England, Proceedings of the Massachusetts Historical Society, December, |