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CHAPTER V

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THE DEVELOPMENT OF STATE CONSTITUTIONS

THE extent to which the social and political institutions of the American people have departed from the models set by the statesmen of the eighteenth century is nowhere more clearly revealed than in the development of state constitutions. In them the establishment of political democracy is recorded, and numerous legal rules for meeting practical problems are laid down. In short, they are, as Mr. Bryce points out, "a mine of instruction for the natural history of democratic communities.”

31. Early State Constitutions

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The belief of our early constitution-makers that stable government could be founded only on the rule of the propertied classes, especially the freeholders, is fully demonstrated in the first state constitutions, the character of which may be fairly illustrated by these extracts from the fundamental laws of Georgia and Maryland:

Extract from the Georgia Constitution of 1789

ARTICLE I

Section 3. No person shall be a member of the senate who shall not have attained to the age of twenty-eight years, and who shall not have been nine years an inhabitant of the United States, and three years a citizen of this State; and shall be an inhabitant of that county for which he shall be elected, and have resided therein six months immediately preceding his election, and shall

1 For an extract illustrating the process of amending state constitutions, see below, p. 411.

be possessed in his own right of two hundred and fifty acres of land, or some property to the amount of two hundred and fifty pounds.

repre

and

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Section 7. No person shall be a member of the house of sentatives who shall not have attained to the age of twenty-one sentatives. years, and have been seven years a citizen of the United States, and two years an inhabitant of this State; and shall be an inhabitant of that county for which he shall be elected, and have resided therein three months immediately preceding the election; and shall be possessed in his own right of two hundred acres of land, or other property to the amount of one hundred and fifty pounds.

ARTICLE II

election

Sec. 2. The house of representatives shall, on the second day The of their making a house, in the first, and in every second year of the thereafter, vote by ballot for three persons; and shall make a list governor. containing the names of the persons voted for, and of the number of votes for each person; which list the speaker shall sign in the presence of the house, and deliver it in person to the senate; and the senate shall, on the same day, proceed, by ballot, to elect one of the three persons having the highest number of votes; and the person having a majority of the votes of the senators present shall be the governor.

The

Sec. 3. No person shall be eligible to the office of governor governor's who shall not have been a citizen of the United States twelve years, qualificaand an inhabitant of this State six years, and who hath not at- tions. tained to the age of thirty years, and who does not possess five hundred acres of land, in his own right, within this State, and other species of property to the amount of one thousand pounds sterling.

Extract from the Maryland Constitution of 1776

II. That the House of Delegates shall be chosen in the following manner: All freemen, above twenty-one years of age, having

Elections to house.

the lower

The

governor chosen by

joint ballot.

The governor's council.

a free-hold of fifty acres of land, in the county in which they offer to vote, and residing therein and all freemen, having property in this State above the value of thirty pounds current money, and having resided in the county, in which they offer to vote, one whole year next preceding the election, shall have a right of suffrage, in the election of Delegates for such county: and all freemen, so qualified, shall, on the first Monday of October, seventeen hundred and seventy-seven, and on the same day in every year thereafter, assemble in the counties, in which they are respectively qualified to vote, at the courthouse, in the said counties; or at such other place as the Legislature shall direct; and, when assembled, they shall proceed to elect, viva voce, four Delegates, for their respective counties, of the most wise, sensible, and discreet of the people, residents in the county where they are to be chosen, one whole year next preceding the election, above twentyone years of age, and having, in the State, real or personal property above the value of five hundred pounds current money; and upon the final casting of the polls, the four persons who shall appear to have the greatest number of legal votes shall be declared and returned duly elected for their respective counties.

XXV. That a person of wisdom, experience and virtue, shall be chosen Governor, on the second Monday of November, seventeen hundred and seventy-seven, and on the second Monday in every year forever thereafter, by the joint ballot of both Houses (to be taken in each House respectively) deposited in a conference room; the boxes to be examined by a joint committee of both Houses, and the numbers severally reported, that the appointment may be entered; which mode of taking the joint ballot of both Houses shall be adopted in all cases.

...

XXVI. That the Senators and Delegates, on the second Tuesday of November, 1777, and annually on the second Tuesday of November forever thereafter, elect by joint ballot (in the same manner as Senators are directed to be chosen) five of the most sensible, discreet, and experienced men, above twenty-five years of age, residents in the State above three years next preceding the

election, and having therein a freehold of lands and tenements, above the value of one thousand pounds current money, to be the Council to the Governor, whose proceedings shall always be entered on record, to any part whereof any member may enter his dissent; and their advice, if so required by the Governor, or any member of the Council, shall be given in writing, and signed by the members giving the same respectively; which proceedings of the Council shall be laid before the Senate, or House of Delegates, when called for by them or either of them.

32. American Rotten Boroughs*

It is one of the cardinal principles of modern democracies that representatives should be distributed fairly among districts substantially equal in population. This principle has now been widely adopted, although there are still marked exceptions, notably in Connecticut, Rhode Island, and New Hampshire,' but in the beginning of our political history it was not recognized as a controlling theory in the apportionment of representatives among the various state districts. In fact, there were in a number of states conditions very similar to those prevailing in England before the Reform Bill of 1832, and they were the subject of constant criticism on the part of democratic writers like Niles, from whose Weekly Register (1821) this extract is taken:

The doctrine of appor

tionment according to population.

almost duplicated

in the

United

States.

What hypocrites are we, to censure and rail at England, for her Old Sarum manner of electing members of the house of commons, while several of our states have their legislative power constituted on the same principle, and which, in time, may become the same in practice, by changes in the state of population, without changes in their political constitutions. Old Sarum, which now has not one resident elector, though it sends two members to parliament, once was a place of some consequence it has gone to decay – a single house remains to point the spot whereon the borough stands. Thus also, certain counties that I could name, in certain parts of the United States, are passing to decay - large tracts of

1 Dealey, Our State Constitutions (1907), Chap. XI.

Party

squabbles in Maryland prevent reform.

Conditions worse in Virginia.

country that were cultivated a century ago, are now covered with new growths of stunted timber, the haunt of the deer and other timid animals of the forest. The people have mostly departed for new and better lands yet the power of representation re

mains; and it may easily happen, if this course of things is continued, that one freeholder may possess the soil of several counties, and, like an English lord, elect 4, 6, 8, or 10 of his creatures to a state legislature, to make laws for freemen.

Three or four of the old states are governed on this outrageous plan - Maryland and Virginia, and especially the latter, stand conspicuous for such violations of everything that is honest, everything that is just. In Maryland, the nice balance of political parties (according to the present manner in which power is derived), and the dirty struggles between the ins and outs, seem to swallow up the reason of the matter, and prevent a reformation which every man admits ought to take place: the sense of honor and a love of justice is sacrificed to a possession of party power — to put into or put out of office a few insignificant individuals; for this (say what one can) is the real amount of the present political contests in Maryland: neither party is disposed fairly to bring about a representation of the people, or even a representation of property - a representation of anything else than certain districts of country, no matter whether inhabited by men or opossums. Some, no doubt, will be angry with these rude expressions, but "the mischief is" that they are true, that both parties have had the power and yet suffered the outrage to exist unregarded.

In Virginia, though the principle is the same, the result is much more objectionable than in Maryland on account of the greater changes that have taken place in the relative population and wealth of counties; and so it now is, that one man in certain of the counties, has as much weight in representation as twenty or thirty, in another; and so also in regard to wealth and extent. The thing was started wrong; and it seems as if the people of Virginia thought there was a merit in continuing in the wrong.

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