A Social and a Political Compact merely by or with the consent of the citizens but by their direct act or by their authorized agents for this purpose. The organization is a social compact as far as the association of the citizens forming it is concerned, and a political compact as far as the government of the body politic is concerned. Because of this action on their part they are bound by the compact, although on this theory it is difficult to see how their descendants are to be bound. The act which they committed, the association which they formed and the compact which they believed they created are perhaps most clearly stated in the preamble to "a constitution or frame of government, agreed upon by the delegates of the people of the State of Massachusetts Bay, in convention, begun and held at Cambridge, on the fifth of September, 1779, and continued by adjournments, to the second of March, 1780," which preamble, still prefixed to the constitution of that commonwealth, reads as follows: The end of the institution, maintenance and administration of government, is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquillity, their natural right, and the blessings of life: And whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happi ness. The body-politic is formed by a voluntary association of individuals; it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them. We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the Great Legislator of the Universe, in affording us, in the course of his providence, an opportunity, deliberately, and peaceably, without fraud, violence, or surprize, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring his direction in so interesting a design, DO agree upon, ordain, and establish, the following Declaration of Rights, and Frame of Government, as the CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS.1 The provisions of this social compact were not matters of theory with the good people of those days; they were principles of the constitution to be observed, a fact thus stated by the eighteenth article of the Declaration of Rights of Massachusetts: A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary, to preserve the advantages of liberty, and to maintain a free government. The people ought, conse 1 The Constitutions of the Several Independent States, 1781, pp. 7-8. quently, to have a particular attention to all those principles, in the choice of their officers and representatives: And they have a right to require of their lawgivers and magistrates, an exact and constant observance of them, in the formation and execution of all laws necessary for the good administration of the commonwealth.1 The same ideas are found expressed in the Bill of Rights adopted at the convention held at Williamsburg, Virginia, drafted by George Mason and adopted June 12, 1776, within five days after the motion made by Richard Henry Lee, on behalf of Virginia, for the Declaration of Independence, and several weeks before the adoption of the Declaration, drafted by Thomas Jefferson, likewise of Virginia. Thus: Section 1. That all men are by nature equally free and independent, and have certain inherent rights of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. Sec. 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them. Sec. 3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that, when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal. Sec. 4. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary.2 In pursuance of this right to choose their form of government and to make it adequate to the purposes for which it was instituted, the constitutions were to be retained as long as they met the needs of the people, and to be changed whenever they failed to do so. Therefore, provisions were made for their amendment. Conventions were to be called for this purpose, or amendments were to be proposed in one session of the legislature and considered at a subsequent session or by a larger majority in the legislature; for, the constitution being a compact between the people on the one hand and Compact each of the citizens of the State on the other, was a fundamental law. It was not an act of the legislature, to be withdrawn or modified by the simple majority of a deliberative assembly, as would be the case of an ordinary statute. 1 Ibid., pp. 12-13. 2 Thorpe, Charters and Constitutions, Vol. 7, p. 3813; Poore, pp. 1908–9. a Fundamental Law Revenue Governor's Each of the thirteen States had the threefold separation of powers, and each had a legislative branch, which, with the exception of Pennsylvania, consisted of two houses. Each had a single executive, called president or governor, and each had a judiciary, separate and distinct from both of these powers, but on appeal the judicial power was in some cases exercised in conjunction with one or both. In colonial times the legislative power had been exercised in an assembly composed of two branches, and this method was retained, but each branch, however, was henceforth elected by the people, rejecting the principle of appointment of the upper branch. In Pennsylvania, due apparently to the influence of Benjamin Franklin, there was but one chamber, and Vermont, being without experience, as it had not been a colony under the Crown nor a State under the Articles of Confederation, adopted the single house from Pennsylvania, and indeed its entire constitution. Each body could propose laws, but the approval of both was necessary to the statute, as was the approval of the governor. The colonists, like the people of England, had learned that the power that held the purse would control the sword, and as the lower house was elected by the people and the upper house in most cases appointed by the governor or Crown, acting for the Crown, the colonists insisted that revenue bills should not only originate in the lower house, but that they could not be controlled by the upper house, consisting of the governor and appointed members. Having in mind this experience, the constitutions of the States provided that revenue bills should originate in the lower not in the upper house, although some allowed them to be amended in the upper house while others withheld this power from the second chamber. The law, whether it be an ordinary statute or a revenue bill, in most cases required the approval of the governor, which is either a deviation from the principle of separation or is the cooperation recognized as separate and distinct in their nature. It was, however, appreciated that the governor might improperly or mistakenly withhold his approval, and that it would interfere with the legislature and be a detriment to this system of government if he were thus allowed to block the course of legislation. Therefore, a method was devised to overcome the deadlock between these two branches of government, the principle of which appears to be best stated in Article 3 of "the Constitution of the State of New York, established by the Convention authorized and empowered for that purpose April 20, 1777"- the model of provisions in other States and the source of proposals made in the Constitutional Convention and the direct source of the principle ultimately adopted. Thus: And whereas, laws inconsistent with the spirit of this constitution, or with the public good, may be hastily and unadvisedly passed; be it ordained that the governor for the time being, the chancellor, and the judges of the supreme court, or any two of them, together with the governor, shall be, and hereby are, constituted a council to revise all bills about to be passed into laws by the legislature, and for that purpose shall assemble themselves, from time to time, when the legislature shall be convened; for which, nevertheless, they shall not receive any salary or consideration, under any pretence whatever. And that all bills, which have passed the senate and assembly, shall, before they become laws, be presented to the said council for their revisal and consideration; and if upon such revision and consideration, it should appear improper to the said council, or a majority of them, that the said bill should become a law of this state, that they return the same, together with their objections thereto in writing, to the senate or house of assembly, in which so ever the same shall have originated, who shall enter the objections sent down by the council, at large, in their minutes, and proceed to reconsider the said bill. But if after such reconsideration, two-thirds of the said senate or house of assembly, shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and if approved by two-thirds of the members present, shall be a law. And in order to prevent any unnecessary delays, be it further ordained, that if any bill shall not be returned by the council within ten days after it shall have been presented, the same shall be a law, unless the legislature shall, by their adjournment, render a return of the said bill within ten days impracticable; in which case the bill shall be returned on the first day of the meeting of the legislature, after the expiration of the said ten days.1 Powers The grant of power to the legislature was contained in the constitution Legislative and was presumed to be complete, unless restricted. If it was deemed necessary or expedient in the opinion of the framers of the constitution to withhold power from the legislature, this was likewise done in the constitution, and the declarations of rights prefixed to the State constitutions are to be considered as limitations upon the legislative body. Therefore the powers to be enjoyed by the legislative branch of the States did not need to be enumerated in specific terms as in the case of the Articles of Confederation, or in specific and general terms as in the case of the Constitution of the United States, inasmuch as all powers of the State vested in the people of the State, and only such powers, could be exercised by the union of the States as should be granted expressly or by necessary implication. Nevertheless, the people of the States were so accustomed to a declaration of rights that they objected to its absence from the Federal Constitution, and although no power could be exercised by the government thereunder unless expressly or impliedly granted, they insisted upon amendments to the Constitution, of which twelve were proposed by the first congress of the more perfect Union and ten adopted by the States. These amendments, presumed to express the views of the framers of the Constitution, were so contemporaneous with that instrument as to be in fact, although not in form, a declaration of rights appended instead of being prefixed to it. 1 The Constitutions of the Several Independent States, 1781, pp. 63-4. Executive Judicial The executive power was vested in the governor or president, as he is called in some of the constitutions, and he exercised, either alone or in conjunction with a smaller body, the executive power of the State. He was the Captain-General or the Commander-in-Chief of the land and naval forces of the State, and his duty was to obey its laws, to secure their universal observance, and to exercise in his discretion the rights vested in him as executive. He was elected, in some cases directly by the people, in others by the legis lature. He appointed officers, in some cases by the advice and consent of the legislature or of one of the branches thereof, although in some States the officials, especially the judges, were elected by the legislature. The practice varied, and because of this variation, difficulty was experienced in hitting upon an acceptable method of choosing the judges in the Federal Convention; and because of the election of the executive, either by the people of the State or by the legislatures of the different States, there were differences of opinion in the Federal Convention difficult to reconcile because of diverse practice and a lack of experience in the case of the election of a president of the United States instead of an executive within each of the States. In the case of the colonies the governor was appointed by the proprietor, as in the case of the proprietary provinces of Maryland and of Pennsylvania, or appointed by the Crown, as in the colonies generally, or elected by the people, as in the case of Rhode Island and Connecticut, in the same manner as a Mayor in a Corporation in England. Because of lack of experience in the colonies as well as in the States, the method of selecting the president, devised by the framers of the Constitution, broke down within a few years after the institution of government under the Constitution, and has been twice amended. In the matter of the judiciary it is sufficient to say in this connection that courts were organized and existed in each of the colonies, that they were appointed by the proprietors in Maryland and in Pennsylvania, that they were appointed by the Crown generally to serve during the pleasure of the Crown, although there was a determined attempt on the part of the colonies to have them hold office during good behavior, as in the case of the English judges, appointed after and in pursuance of the Bill of Rights of 1689, or they were appointed or elected by the colonial authorities, as in the case of Connecticut and Rhode Island. The final court of appeal was during the colonial period the King in Council, just as the laws of the colonies, with the exception of Connecticut and Rhode Island, were subject to veto under prescribed conditions, by the King in Council. Under the constitutions of the States there was, as has been stated a judiciary, whose judges were ordinarily elected by the legislature, or, as in the case of Massachusetts, appointed by the governor with the advice and consent |