PART I HISTORICAL INTRODUCTION CHAPTER I COLONIAL ORIGINS OF AMERICAN INSTITUTIONS institutions based on experience, not on theories. THERE is a lingering tradition in the United States that the American men of the eighteenth century who laid the foundations of our system of government broke violently from political experience and sought their guidance in the abstract principles of the rights of man. As a matter of fact, however, the Revolutionary Fathers had no quarrel with the fundamental English institutions under which they lived; their revolt was against the colonial policy of the British government, a protest against definite measures which affected them adversely, not a demand for the realization of the equalitarian notions enunciated in the Declaration of Independence, which served very well to justify the Revolution, but afforded no practical basis for the reconstruction of the political system after British dominion was thrown off. Neither in the creation of the state governments nor in the formation of the Union did the Fathers depart very radically from experience, and even their departures were reactions against concrete abuses rather than attempts at ideal creations. With governors, councils, legislatures, judicial systems, municipal and local governments, and their operations under American conditions, they were familiar; and as most of them were staid and conservative men, well schooled in the actual management of public business, they had neither interest nor desire to lead them into experiments in theoretical politics. The sources of American government, therefore, are to be sought not in the realms of political philosophy, but in the dry records which describe the institutional heritage with which the new nation began its career of independence. On the eve of the Revolution, the American colonies fell into three general groups, according to the customary classification: The governor to have general executive power. royal, corporate, and proprietary. The governments of all of them, however, were based on written documents issued by the English crown and limited by them as well as by statutes passed by Parliament from time to time. The general outlines for the government of the royal province, for example, were laid down in the governor's commission, of which the following, issued by George III for New Hampshire, may be taken as typical: 1. The Royal Province * George the Third by the Grace of God of Great Britain, France, and Ireland, King, Defender of the Faith & so forth. To our Trusty and well beloved Benning Wentworth Esquire, Know you, That Wee, reposing especial Trust and Confidence in the Prudence, Courage and Loyalty of you Benning Wentworth, of our Especial grace, certain Knowledge and meer motion, Have thought fit to constitute and appoint you . . . the said Benning Wentworth to be our Governour and Commander-inchief of our province of New Hampshire within our Dominion of New England in America . . . with all & singular the Powers and Authoritys hereby granted you for and during our will and Pleasure: And we do hereby require & Command you to do & Execute all things in due manner that shall belong unto your said Command and the Trust we have reposed in you according to the several Powers and Directions granted or appointed you by this Present Commission and the Instructions & Authorities herewith given or by such further Powers, Instructions, and Authorities as shall at any time be granted or appointed you under our signet & sign manual or by our Order in our Privy Council & according to such reasonable Laws and Statutes as now are in force or hereafter shall be made & agreed upon by you with the advice & consent of our Council & the Assembly of our said Province and Plantation under your Government, in such manner & form as is hereafter expressed. governor's council. And wee do hereby give & grant unto you full Power and au- The thority to suspend any of the members of our said Council from sitting, Voting & assisting therein, if you shall find just cause for so doing and if it shall at any time happen that by the Death, Departure out of our said Province, suspension of any of our said Councillors, or otherwise there shall be a Vacancy in our said Council, any three whereof we do hereby appoint to be a Quorum, our Will & Pleasure is that you signify the same to us by the first opportunity, that wee may under our signet and sign manual constitute & appoint others in their stead; but that our affairs at that Distance may not suffer for want of a due number of Councillors, if ever it shall happen that there shall be less than seven of them residing in our said Province, Wee do hereby give & grant unto you the said Benning Wentworth full Power & Authority to choose as many Persons out of the Principal Freeholders Inhabitants thereof as will make up the full Number of our said Council to be seven & no more, which persons so chosen & appointed by you shall be to all intents & Purposes Councillors in our said Province until either they shall be confirmed by us or that by the nomination of others by us under our sign manual & signet our Council shall have seven or more Persons in it: And wee do hereby give & grant unto you full Power & Au- Governor thority with the advice & consent of our said Council from time to time as need shall require to summon & call General Assemblys of the said Freeholders & Planters within Government your in manner & form according to the usage of our Province of New Hampshire: and council empowered to call an assembly. ernor, council, and assembly may make laws. Wee do hereby Declare that the Persons so elected & qualified The govshall be called & Deemed the General Assembly of that our said Province & Plantation and that you the said Benning Wentworth with the consent of our said Council & Assembly or the major part of them respectively shall have full Power & Authority to make Constitute and ordain Laws, Statutes and Ordinances for the Publick Peace, Welfare and good Government of our said Province & of the People & Inhabitants thereof, and such others Laws to be transmitted for royal approval. The governor's veto power. The appointment of judges. as shall resort thereto, and for the Benefit of us our Heirs & Successors, which said Laws, Statutes & ordinances are not to be repugnant, but as near as may be agreeable to the laws & Statutes of this our Kingdom of Great Britain. Provided that all such Statutes & ordinances of what nature & Duration soever be within three months or sooner after the making thereof transmitted unto us under our Publick Seal of New Hampshire for our approbation or Disallowance of the same, as also Duplicates thereof by the next conveyance, and in case any or all of the said Laws Statutes & ordinances not before confirmed by us shall at any time be disallowed & not approved & so signified by us our Heirs or successors under our or their sign manual & signet or by order of our or their privy Council unto you the said Benning Wentworth or to the Commander-in-Chief of our said province for the time being, then such & so many of the said Laws Statutes & ordinances as shall be so disallowed and not approved, shall from thence cease, Determine & become utterly void, & of none effect, any thing to the contrary thereof notwithstanding. And to the End that nothing may be passed or done by our said Council or Assembly to the Prejudice of us our Heirs & Successors We will & ordain that you the said Benning Wentworth shall have & enjoy a negative Voice in the making & Passing of all Laws & Statutes & ordinances as aforesaid, and you shall and may likewise from time to time as you shall judge it necessary, adjourn, Prorogue & Dissolve all General Assemblies as aforesaid. Our further Will & Pleasure is, that you shall and may keep and use the Publick Seal of our Province of New Hampshire for sealing all things whatsoever that Pass the Great Seal of our said Province under your Government. And We do hereby authorize and empower you to constitute and appoint Judges and in cases requisite Commissioners of Oyer and Terminer, Justices of the Peace and other necessary officers and ministers in our said Province for the better administration of Justice and putting the Laws in execution, and to administer or cause to be administered unto them such oath or oaths as are usually given for the due execution and Performance of offices and Places and for the clearing of Truth in Judicial Causes. And we do hereby give and grant unto you full Power and The granting authority where you shall see cause or shall Judge any offender of pardons or offenders in criminal matters or for any Fines or Forfeitures and due unto us fit objects for our mercy to Pardon all such offender reprieves. or offenders, and to remit all such fines and forfeitures, Treason and Willfull murder only excepted, in which cases you shall likewise have Power upon extraordinary occasions to grant reprieves to the offenders until and to the Intent our royal Pleasure may be known therein. governor as And we do hereby give and grant unto you the said Benning The Wentworth by yourself or by your Captains and Commanders military by you to be authorized, full Power and authority to Levy, arm, commander. muster, command and Employ all persons whatsoever residing within our said Province & Plantations, and as occasion shall serve to march from one place to another or to embark them for the resisting and withstanding of all Enemies, Pyrates & rebels both at Land and Sea, and to transport such forces to any of our Plantations in America if necessity shall require for the Defence of the same against the Invasions or attempts of any of our Enemies, and such Enemies, Pirates and rebels, if there shall be occasion to pursue and prosecute in or out of the limits of our said Province & Plantation or any of them, and if it shall so Please God, them to vanquish, apprehend and take, and being taken according to Law to put to Death, or keep or Preserve alive at your discretion, and to Execute martial Law in time of Invasion or other times, when by Law it may be executed, and to do and execute all and every other thing and things which to our Commander-in-Chief doth or ought of right to belong. governor to appoint Forasmuch as mutinies & Disorders may happen by persons The Employed at sea during the time of war, and to the End that such persons as shall be shipped & Employed at sea during the time of war, may be the better governed and ordered, We do hereby naval officers. |