PART I

HISTORICAL INTRODUCTION

CHAPTER I

COLONIAL ORIGINS OF AMERICAN INSTITUTIONS

AMERICAN government did not originate in any abstract theories about liberty and equality, but in the actual experience gained by generation after generation of English colonists in managing their own political affairs. The Revolution did not make a breach in the continuity of their institutional life. It was not a social cataclysm, the overthrow of a dominant class, the establishment of a new estate in power. It was rather an expansion of the energy of the ruling agricultural and commercial classes, that burst asunder the bonds with which the competing interests in England sought to restrain their growing enterprise. American shipwrights could build vessels as fleet and strong as any that sailed the seas, and they were determined to conquer by main strength a free place in the world's market. American merchants were as ingenious as those who made England the nation of shopkeepers, and they could ill brook the restraints which condemned them to buy important staples in the marts of Great Britain. America was rich in timber, raw materials, and mineral resources, and American manufacturers chafed under laws compelling consumers to look beyond the seas for commodities which might well have been made in New England or Pennsylvania. It was discontent with economic restrictions, not with their fundamental political institutions, which nerved the Revolutionists to the great task of driving out King George's governors, councillors, judges, revenueofficers, and soldiers. The American Revolution, therefore,

was not the destruction of an old régime, although it made the way for institutional results which its authors did not contemplate; and it was not motived by the levelling doctrines with which the French middle class undermined the bulwarks of feudalism.1

There had long been executive, legislative, and judicial offices in all of the colonies, and the Revolutionists merely took possession of them. Unlike the French popular party, they did not have to exercise their political ingenuity in creating any fundamentally new institutions. The Revolutionists of Rhode Island and Connecticut, where the governors, councillors, and judges were not appointed by the crown, found their ancient systems of government, based on seventeenth-century charters, so well suited to their needs and ideals that they made no alterations beyond casting off their allegiance to the King of Great Britain. The royal charter granted to Connecticut by Charles II in 1662 remained the constitution of that commonwealth until 1818; and the charter of the neighboring state of Rhode Island, granted in 1663, remained in force as the fundamental law until 1842. The distribution of representation, the suffrage, the qualifications for office-holders, and the legislative, executive, and judicial institutions of old English origin were continued after the Revolution without many radical alterations.

Even the federal Constitution, in spite of Mr. Gladstone's high praise that it was the most wonderful work struck off at a given time by the brain and purpose of man, was based as far as possible on the experience of the colonies and the states. The very names applied to the Senate, House of Representatives, and President were taken from the institutions of some of the states, while many clauses of the Constitution, such as those providing the process of impeachment, the presidential message and veto, the origin of money bills in the lower house, and the freedom of each house to determine its procedure under certain limitations, were taken almost verbatim from state constitutions. The powers which the Convention of 1787 vested in

1

Compare, for instance, the following chapter with the account of the institutional reforms of the French Revolution in Robinson and Beard, Development of Modern Europe, Vol. I, chaps. xi and xii.

2 For a study of the sources of the federal Constitution, see Robinson, Original and Derived Factors of the United States Constitution, and the note

Congress were scarcely experimental, for six years' practical experience with the shortcomings of the Articles of Confederation had taught statesmen the inexorable necessity of giving the national government those very powers, and limiting the states in the exercise of the authority which they had previously enjoyed. Nor must it be forgotten that the right later assumed by the Supreme Court to pass upon the constitutionality of laws and declare them void had already been exercised by many state courts.2

The dictum of Stubbs that the roots of the present lie deep in the past has now become commonplace; but it is true of American institutions in a very peculiar sense, for they are founded on written documents which, in spirit and form, bear the impress of the political and economic conditions prevailing at the time of their creation. Many state constitutions still reveal distinct traces of Revolutionary days, and the written letter of the federal Constitution, notwithstanding the fifteen amendments and the revolution wrought by the Civil War, remains unchanged so far as the machinery of government and the powers of its three departments are concerned. It is, therefore, from American history alone that one can learn, for instance, why there are two Senators from each state, why the system of checks and balances, so characteristic of American institutions, was adopted, why the President is chosen through an elaborate electoral system, why interstate commerce powers are vested in the federal government, or why certain political practices have sprung up in the attempts to operate our governments, national and state."

The Colonial Governor

On the eve of the Revolution there were thirteen colonies in America - each with its separate institutions and its peculiar

4

to chap. iv of Bryce, American Commonwealth, Vol. I, taken from Johnston's article in the New Princeton Review, September, 1887.

1 See an illuminating article on this point by Professor Max Farrand, in the American Political Science Review for November, 1908.

2 Early cases illustrating the power of the courts to declare state laws invalid on constitutional grounds are to be found in Thayer, Cases on Constitutional Law, Vol. I, pp. 48 ff. See also Professor Charles G. Haines' valuable essay on The Conflict over Judicial Powers (Columbia University Studies). 3 Goodnow, Politics and Administration, especially chap. ii. * Delaware was under the proprietor of Pennsylvania.

traditions, many of which, it is instructive to remember, were then older than are our national traditions to-day. In form of government, however, especially in its higher ranges, the colonies presented striking similarities. Each had a governor, an assembly, and a judicial system, and the Common Law of England, as far as it was applicable and had not been changed by legislation, was binding everywhere.

1

In eight of the colonies, Georgia, North Carolina, South Carolina, Virginia, New Jersey, New York, New Hampshire, and Massachusetts, the governor was appointed by the king and recognized as the king's personal deputy. He occupied a twofold position. On the one hand, he was the representative of British interests in the colony- the agent through whom the will of the British government was made known to the inhabitants, and the guardian who kept the crown informed on the state of the province. On the other hand, he was the highest executive official in the colony, charged with the conservation of the peace and advancement of the welfare of the colonists.3 As a contemporary writer put it: "the crown delegates to the governor for the time being all its constitutional power and authority, civil and military the power of legislation so far as the crown has such- its judicial and executive powers, its powers of chancery, admiralty jurisdiction, and that of supreme ordinary."

As the chief executive, he supervised the enforcement of the laws and appointed, usually in connection with the advice of his council, the important civil officers. He could remove councillors 5 and officials for cause, and direct them in administration. By virtue of his position as chancellor, he was head of the highest court in the colony, which entertained appeals from lower tribunals and exercised important original jurisdiction in many

1 For Massachusetts' peculiar position, below, p. 5.

2 See Readings, p. 2, for a royal governor's commission. 3 Greene, The Provincial Governor, chap. iv, p. 65.

4 Thomas Pownall, The Administration of the Colonies, pp. 85-86. The term "supreme ordinary" applies to the powers of the king as head of the Church of England. The royal governor was commissioned by the crown and commonly styled, "Captain-General, and Governor-inChief in and over the Province, and Chancellor, Vice-Admiral, and Ordinary of the same."

Not in Massachusetts.

matters. Moreover, he granted pardons and reprieves. He was commander-in-chief of the colonial forces, appointed the military officers of high rank, levied troops for defence, and enforced martial law in time of invasion, war, or rebellion. As the king's ecclesiastical representative, he collated to churches and benefices.

In connection with the colonial legislature, the royal governor also enjoyed extensive powers. In all of the eight colonies mentioned above, except Massachusetts, he nominated the council which composed the upper house of the legislature. He summoned, adjourned, and dissolved the assembly; he laid before it projects of law desired by the home government; and he vetoed laws which he thought objectionable. He was thus endowed by law with high authority, and often increased his political influence through his power of appointing local sheriffs who were the constituting officers at elections for the assembly. In short, the royal governor enjoyed such high prerogatives in colonial times that the first state constitution-makers, having learned by experience to fear executive authority, usually provided for the supremacy of the legislature and gave their governors very little power.1

The royal governor, however, was by no means an unlimited. sovereign in his province, for he was bound by his instructions and by the restraints which the assembly imposed through its power of controlling the grants of money. Indeed, in the innumerable disputes which fill colonial history, the assembly usually triumphed over an obstinate governor because it was able to keep a firm grip on the purse-strings. Toward the eve of the Revolution, his appointing power was curtailed by the claims of the council to a share in the distribution of patronage. Moreover, complaints against his actions often went to the Board of Trade, while appeals from his decisions lay to the king in council across the sea.

Unlike the other colonies which had governors appointed by the king, Massachusetts had a charter that set forth, among other things, the general organization and powers of the legislature. The governor could adjourn, prorogue, and dissolve

1 See below, p. 87.

2 Whitney, Government of the Colony of South Carolina, pp. 39–40.