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Variety of colonial governments before the Revolution

- Mode of adopting State constitutions

Before the Revolution the colonies were living under a great variety of governmental instruments. Some of them had none. New Hampshire and Delaware, for example, were without any formal grant or charter. They were not separate colonies; but New Hampshire existed only by royal sufferance and was a semi-appendage of Massachusetts, with often the same governor; while Delaware was theoretically three counties of Pennsylvania with always the same governor over all. Pennsylvania and Delaware had proprietary governments. New Jersey had a crown government, with the old proprietary instrument of government, the "Concessions." Massachusetts, New York, Virginia, the Carolinas, and Georgia had crown governments and royal charters. Connecticut and Rhode Island had pure self-governing charters. All the colonies had the rights of English freemen, popular assemblies, and the old common law, which their local

tribunals modified to meet the conditions of the new world. When the Revolution broke out, their instruments of government, except in Connecticut and Rhode Island and to some extent in extent in Massachusetts, no longer served their new needs as members of an independent republic, requiring great modification or entire

reconstruction.

The State constitutions originated, as did the National government, through popular sentiment which unified the purpose of each colony. New Hampshire, in January 5, 1776, was the first colony to adopt a constitution framed by the people. Seven other States adopted their constitutions the year the Declaration of Independence was signed. These were: South Carolina, March 26; Virginia, June 29; New Jersey, published July 3; Delaware, proclaimed September 21; Pennsylvania, September 28; Maryland, November 11; and North Carolina, December 18. The remaining five of the original thirteen adopted constitutions on the following dates: Georgia, February 5, 1777; New York,

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April 20, 1777; Massachusetts, March 2, 1780; Connecticut, September 16, 1818; and Rhode Island, 1842.

These constitutions were adopted by provisional congresses or by conventions which had been called by the Congresses. The conventions organized in 1776 and 1777 assembled in accordance with the expressed wish of the Continental Congress that the people of the colonies should form independent State governments. None of these constitutions, except those of Massachusetts and Connecticut, were submitted to the people for ratification. Massachusetts was the first to adopt the method of procedure since commonly observed of electing delegates to a convention for the express purpose of framing a constitution, and afterwards submitting the instrument thus drafted to the people for approval. The Connecticut constitution of 1818 was adopted by a close vote of the people, 13,918 for and 12,364 against it. The earlier adopting bodies themselves had no basis but popular desire and consent, and the people asked nothing better than to have them assume the power. But in the other New England colonies there was no such haste, for their bodies of law were satisfactory enough. Even the Massachusetts General Court did not replace the royal charter by a constitution until February 28, 1778, when it was submitted to popular vote and was rejected; another, drawn up by John Adams, was adopted by a con

vention on March 2, 1780, and ratified by the people. The two colonies, already under pure democratic charters, took no steps to alter them. No alteration was needed. In fact, Connecticut remained under the charter of April 23, 1662 (which by the statute of 1776 was enacted to be the constitution of the State), until 1818, when a strong democratic movement took the reins of power from the hands of the local aristocracies by whom they were mainly held; while Rhode Island remained under the charter of March 14, 1643 (renewed 1663), until 1842, twothirds of a century after the Revolution.

The fact of greatest significance was that, practically for the first time in history, the people of the revolutionary period were brought in contact with a problem of establishing written. constitutions. A State constitution, as defined by Bryce, is "a comprehensive fundamental law, or rather group of laws included in one instrument, which has been directly enacted by the people of the State, and is capable of being repealed or altered, not by their representatives, but by themselves alone." The political experience and theories of the colonists thus supplied three principles: (1) The employment of definite written instruments of government; (2) The idea of a constitution superior to legislative enactments and of certain natural rights secured by such a constitution; and (3) The theory of social contract.

Jefferson, Madison, and other early

American statesmen accepted the social contract theory of government advanced by Hobbes, Locke, and Rousseau, and they embodied it in the Declaration of Independence and in the bills of rights of the early State constitutions. This theory, which became prevalent in the Seventeenth and Eighteenth centuries, was that the state had its origin in a contract or compact among individuals whereby each gave up part of his liberty in order that all might be protected by the combined strength of all. This was a radical departure from the ancient doctrine, which survived the Middle Ages, that the state was of direct divine creation; and it was contrary to the patriarchal theory propounded later by Sir Henry Maine (1822-1888) that the head of the state is the king, sanctified as priest and father of his people. The social contract theory developed the idea of sovereignty in the people. This idea, with the ideas of independence and organization, formed the complete and perfect conception of the state as known to-day in the United States of America. By sovereignty is meant supreme and universal power over all individuals within the state's geographical limits. This definition is necessarily limited, however, when applied to the individual commonwealths comprising the Federal Union, because, strictly speaking, these are not sovereign States, since the supreme law of the land rests with the Federal Constitution. Nevertheless,

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while drafted to conform in spirit and purpose with the larger and paramount control of the Federal instrument, the State constitution is supreme within the sphere of its operation, and thus far the State is sovereign over its people.

The colonists had contended in vain that Parliament had violated the fundamental law of English liberty (Magna Charta). They were explicit, therefore, in defining the rights of the people which their own governments must not invade. Seven out of the original thirteen States inserted in their first constitutions a statement of the civil and political rights of the individual, which was known as the "Bill of Rights."

Their example was quickly followed by other States. The Bill of Rights is the legitimate successor of such great English bills of rights as the Magna Charta (1215), the Petition of Right (1628), and the Bill of Rights (1688); and it also reaffirms the principle of the American declaration of rights as avowed by the Stamp Act Congress (1765), the first Continental Congress (1774), and finally the Declaration of Independence itself (1776).

The primordial rights mentioned in the different State constitutions include those of enjoying, possessing, and protecting property, of pursuing and obtaining safety and happiness; the right to alter or reform the government whenever the public good may require it; the free exercise and enjoyment of religious profession and

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worship, without discrimination or preference, though liberty of conscience shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the State; the right of trial by jury; the right of the citizen to speak freely, write, and publish his sentiments, being responsible for the abuse of that right; the right to assemble peaceably, and to petition the government for redress of grievances, etc. The constitution of the State of New York contains a typical example of a bill of rights. The bill of rights generally comprises a single article, divided into many paragraphs or sections, and usually stands at the beginning of the Constitution, but occasionally at the end.

There are special features in every State constitution, in addition to the bill or declaration of rights. Differing in the various States, they are generally as follows:

(A) The definition of the boundaries of the State (except in the case of the older States).

(B) An outline of the general general framework of the government, with provisions for executive, legislative, and judicial departments. This comprises several articles and was a most important part of the fundamental law.

(C) Miscellaneous provisions which the State legislatures have thought radical and important enough to put into their constitutions; though in many cases such provisions are, it

would seem, in the nature of statutory enactments rather than fundamental law. They relate generally to private and administrative law, including articles treating of schools, of the militia, of taxation and revenue, of the public debts, of local government, of State prisons and hospitals, of agriculture, of labor, of impeachment, and of the method of amending the constitution and other matters less political in character.

(D) Lastly, the " Schedule," which is appended to a new constitution and contains provisions relating to the method of submitting the new constitution to the vote of the people and arrangements for the transition of government administration from the previous constitution to the new one. The constitution of California (1879) affords a typical example of the schedule.

The separation of government powers and the checks and balances thereby established were the chief achievements of the early constitutions. The authority of the early State legislature was unrestricted except by the Bill of Rights. Its powers were large; its duties few, since the people of the time were principally dependent upon agriculture, and their lives involved few problems such as confront the modern industrial State. Except in Georgia and Pennsylvania, the legislature had two branches: a lower and an upper house. The early governor had a short term, limited authority, and was ineligible to suc

ceed himself; military powers as in colonial times; no veto power in most States, and no power to pardon, or to make appointments except to minor military and judicial offices. He was chosen by the people in five States, and by the legislature in the others. Before the Revolution the legislature exercised judicial powers; after it, the judiciary was a distinct department, and the jurisdiction of the courts was defined. The judges were appointed by the executive or elected by the legislature.

The revolutionary constitutions already considered and those adopted within the next 30 years are treated by Bryce and other authorities as constituting a first period in the development of State constitutions (17761800). This includes the constitutions of Kentucky (1792), Vermont (1793), Tennessee (1796), and Ohio (1802). A second period (1800-1865) covers "the first half of the present century down to the time when the intensity of party struggles over slavery (185065) interrupted to some extent the natural processes of State development."

The following States adopted constitutions during these two periods:

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Later constitutions, 1790,

Carolina. Later constitutions, 1778, 1790, 1865, 1868 and 1895. 1776 Virginia. Later constitutions, 1830, 1850, 1864, 1870 and 1902.

1819

Maine. Cession of Maine by the State of Massachusetts, and act of Congress declaring admission, 1820.

Alabama. Enabling act of Congress and resolution for admission, 1819. Later constitutions, 1865, 1867, 1875 and

1901.

1820-Missouri.

Enabling act of Congress, 1820; Congressional resolution for admission, and President's proclamation for admission, both 1821. Ordinance of the convention of Missouri, 1861-1863; and later constitutions, 1865 and 1875.