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square; or, if a dweller in a city or town, he had to own a lot or part of a lot with a house twelve feet square. In Massachusetts the voter for member of the legislature, under the charter of 1691, had to be a freeholder of an estate worth at least forty shillings a year, or the owner of other property to the value of forty pounds sterling. In Pennsylvania the vote was restricted to freeholders of fifty acres or more of land "well seated" and twelve acres cleared, and to other persons worth at least fifty pounds in lawful money.

As a result of these property qualifications, a considerable portion of the adult males were excluded from any share in the government. Exact statistics are difficult to obtain, and the following figures are given by Dr. McKinley merely by way of illustration. He estimates that in New York City the voting class included from one-ninth to one-fourteenth of the total population, and that two-fifths of these electors were not owners of property, but voted as freemen of the city. Taking some scattered figures for mid-century elections in Virginia, he places the voting population at from seven to ten per cent of the white inhabitants, and concludes that "the franchise was more widely exercised, if not more widely conferred, in Virginia than in the more Northern colonies." In Boston during the period from 1745 to 1754 the number of voters averaged about three per cent of the population, but this was partially due to the fact that many duly qualified voters were ordinarily inactive, for on one occasion at least six and one-half per cent of the inhabitants took part in an election. In the rural districts of Pennsylvania about one out of ten of the population could vote, while in the city of Philadelphia the fifty-pound qualification disfranchised so many inhabitants that, according to the tax list, only one in fifty possessed the suffrage.

In conclusion, Dr. McKinley says: "In New York City in the elections of 1735, 1761, and 1769, the actual voters numbered about eight per cent of the population. In Pennsylvania the tax list figures give only the potential voters, but they show about eight per cent of the rural population qualified for the suffrage and only two per cent in the city of Philadelphia, a condition quite in contrast to that of New York City. In New England the actual voters appear to be less proportionately than in the middle and southern colonies. Massachusetts, for instance,

shows only one person in fifty as taking part in elections, and Connecticut, in elections immediately preceding the Revolution, had about the same proportion. In Rhode Island the freemen or potential voters numbered only nine per cent of the population. These figures are entirely too few and too scattered in time and territory to justify any accurate generalization from them. The potential voters seem to vary from one-sixth to one-fiftieth of the population, and the actual number of voters shows almost an equal variation; Massachusetts and Connecticut showing at times only two per cent of actual voters among the population, where perhaps sixteen per cent were qualified electors; and New York City and Virginia showing the far larger proportion of eight per cent of the population as actual voters. At best the colonial elections called forth both relatively and absolutely only a small fraction of the present percentage of voters. Property qualifications, poor means of communication, large election districts, and the absence of party organization combined to make the most sharply contested elections feeble in their effects upon the community as compared with the widespread suffrage of the twentieth century."

Most of the colonies also followed the example of the mother country in imposing special qualifications on members elected to the legislature. In South Carolina, for example, a member had to own five hundred acres of land and ten slaves or be worth one thousand pounds sterling in land, houses, or other property. New Jersey members had to have one thousand acres freehold, while in Georgia delegates were required to own at least five hundred acres of land. In addition to property qualifications, religious tests were usually imposed on assemblymen.

Following the ancient practice of England, representatives were distributed, in colonial times, among distinct territorial districts rather than among equal groups of people. In New England the town was the unit of representation, and only a slight attempt was made to adjust the representation to the population. For example, the charter of Rhode Island stipulated that Newport should send not more than six persons, Providence, Portsmouth, and Warwick four each, and other places, towns, and cities two each. The Massachusetts charter,

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while providing that the original assembly should consist of two representatives from each town or place, at the same time authorized the assembly to alter this number at will; and, although the modern democratic principle of equal election districts was not recognized, an attempt was made to give special weight to larger numbers. In the middle colonies, the county was the unit of representation, and, according to ancient English precedent, each county elected its representatives under the supervision of the sheriff as returning officer. In South Carolina representatives were apportioned among parishes, but they varied so greatly in population that the representation was unequal. In general, it may be said, therefore, that the principle of equal representation was not accepted, but that practical considerations led to a very rough attempt to give special recognition to the more populous areas.

The colonial assemblies constantly maintained that they possessed entire and exclusive authority to regulate their domestic concerns.1 Especially in the matter of taxation did they stoutly assert their exclusive rights not only formal declarations but also in actual resistance to the royal and proprietary governors. No attempts, however, were made to define and lay down colonial legislative powers in any complete written instruments. Such a procedure was almost unknown to the political practice of England; and no concrete need for it had arisen in the colonies. In the charters, the legislative power conferred was general, not specific. For example, the Massachusetts charter of 1691 provided that the assembly should have "full power and authority from time to time to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions, and instructions either with penalties or without (so that the same be not repugnant or contrary to the laws of this our realm of England) as they shall judge to be for the good and welfare of our said province or territory." In addition to this general legislative power, the assemblies usually enjoyed a large control over the executive

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1 Story, Commentaries on the Constitution (5th ed.), Vol. II, p. 119. Some of the legislatures, however, prepared statements of their "rights." New York, for example, did this before the close of the seventeenth century.

department through their power to withhold the salaries of the officials.

Notwithstanding the large legislative power asserted and enjoyed by the colonial assemblies, there were certain legal limitations on their authority. In the provincial and proprietary colonies, the governor exercised the right to veto laws,1 and in all colonies except Maryland, Rhode Island, and Connecticut laws had to be sent to England for royal approval. Furthermore a special act of Parliament provided that all laws, by-laws, usages, and customs in the colonies repugnant to laws made in England relative to colonial affairs should be null and void. Later, Parliament distinctly asserted that the colonies and plantations in America were subordinate to and dependent on the crown and Parliament of Great Britain, which enjoyed the power and authority to make laws binding the colonies and people of America in all cases whatsoever. A South Carolina court once went so far as to declare an act of the colonial legislature of 1712 ng away the freehold of one man and vesting it in another, and void on the ground that it was against common right and Magna Charta.2 At all events the colonists had long been acquainted with both theoretical and practical limitations on their assemblies, so that, after gaining independence, they acquiesced, though not without contest, in the courts' assumption of power to declare laws null and void on constitutional grounds.

The Colonial Judiciary

The lowest colonial courts were those held by the justices of the peace, who were generally appointed by the governor, although in some instances they were elected by local freeholders. In civil matters, these justices had jurisdiction over cases involving small amounts, under five pounds in New York and under forty shillings in Massachusetts. In criminal matters they were competent to try only the pettiest offences against the law. Though they bore the name of ancient local magistrates of England, they enjoyed by no means the same powers, especially in

1 In Connecticut and Rhode Island the governor did not enjoy the veto power.

2 Thayer, Cases on Constitutional Law, Vol. I, p. 53.

the matters of administration and local government. In Massachusetts, and some other colonies, however, the old English practice of uniting all the justices of the county in a general court of quarter sessions was followed; and this court, in addition to exercising criminal jurisdiction, supervised roads, bridges, inns, and other county affairs which are now usually placed under the direction of county commissioners.1

Above the justices of the peace there were usually regular county courts, the judges of which were appointed by the governor, except in New Jersey, where they were elected. Generally speaking, the county court had criminal jurisdiction over all except capital cases, although in Massachusetts criminal matters were turned over to sessions of the justices of the peace. The county courts also had civil jurisdiction in cases involving certain amounts.

Each colony had a high court which decided weighty matters and appeals from the lower courts. In the royal colonies the governor as chancellor and his council generally composed this high tribunal; but in Massachusetts it consisted of a chief justice and four associates appointed by the governor and council. In Pennsylvania the supreme court was composed of a chief justice and three associates, chosen by the governor.

Beyond the highest court of the colony, there lay appeals to the king in council in England, and this power was frequently exercised on the eve of the Revolution. Far from being regarded as an infringement on the rights of colonists, it was esteemed a privilege to be able to lay cases before the members of this tribunal, who were so far removed from local jealousies. It was of course an expensive process, and only cases involving certain amounts could be appealed. In Pennsylvania the amount had to exceed fifty pounds, and in Georgia five hundred pounds, before the case could be carried to the king and his council.

While there were great divergences among the colonies in the organization of the courts and the apportionment of business among them, they thus had certain features in common. The idea of an elective judiciary, unknown to English practice, was not accepted save in some minor instances. The system of

1 Readings, p. 13, on the powers of magistrates in Virginia.
2 Story, Commentaries (5th ed.), Vol. I, p. 127.

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