New Instru- to Charters whether executive, legislative or judicial were unlawful as in excess of the grant.1 We of today should say it was to be expected that the colonies would, when they had broken with the mother country, fashion their future according to their own desires, and that in so doing they would revert to written charters in which the rights of governors and governed were stated in clear and unmistakable terms. This, with the exception of Connecticut and Rhode Island, the thirteen colonies did when they declared themselves to be independent States. This the States did when they confederated for the first time, drafting Articles of Confederation in their Congress, to be binding upon all when ratified by each. This representatives of the States did, assembled in the Federal Convention in Philadelphia in 1787, when they formed a more perfect Union than that of the Confederation, in that charter of the Union and of the States which we call the Constitution, defining the rights of the Union and of the States and of the peoples of the States, with courts of justice to pass upon the acts of each, holding them valid when within the grant, holding them invalid when beyond the grant, just as in colonization days acts in excess of the charter were declared to be null and void. 1 This process is stated in very brief compass by Richard Frothingham in a note to page 18 of his Rise of the Republic of the United States, which is here reproduced: Bancroft (i. 250) remarks, that “popular assemblies burst everywhere into life with a consciousness of their importance and an immediate capacity for efficient legislation." These assemblies, in some cases, at first were composed of the whole body of freemen. The dates of the formation of representative assemblies to make laws in the colonies are as follows: Virginia, July 30, 1619.- The governor summoned two burgesses from three cities, three hundreds, three plantations, Argals' gift, and Kiccowtan.- Proceedings in New-York Hist. Soc., Coll. 2d ser. 111, communicated by Bancroft in 1856. The governor, council, and burgesses continued to meet together, Beverly says (Hist. Va. b. iv. 31), till 1680, when "Lord Colepepper, taking advantage of some disputes among them, procured the council to sit apart from the assembly; and so they became two distinct houses, in imitation of the two Houses of Parliament in England,- the Lords and Commons,- and so is the Constitution at this (1705) day." Massachusetts, May 19, 1634.- To the surprise of the magistrates, twenty-five delegates, chosen by the freemen of the towns, of their own motion, appeared and claimed a share in making the laws. The claim was allowed, and their names appear on the records of the day, with the magistrates, as part of the General Court. They sat together for ten years. In 1644, the "Massachusetts Records" say (i. 58), on account "of divers inconveniences," of the magistrates and deputies sitting together, and "accounting it wisdom to follow the laudable practice of other States, who have laid groundworks for government," it was ordered both sitting together that each should sit apart; and they became co-ordinate and co-equal branches, the assent of both being necessary to make a law. Plymouth had a representative assembly in 1639. The charter of 1692 named twenty-eight persons as counsellors: afterwards they were chosen annually by a joint vote of a new House of Representatives and the old counsellors. Connecticut, Jan. 14, 1639.— An agreement among the towns to be as one public State or commonwealth," provided for a representative assembly, consisting of deputies chosen by the freemen, who, with a governor and council, composed the legislative power. They sat together. The charter of 1662 provided, that the governor, deputy-governor, and twelve magistrates should be chosen at a general election, and deputies should be chosen by the towns. All these officers sat together. In 1698, it was ordered that the governor or deputygovernor and magistrates should be called the upper house, and the deputies the lower house, that they should sit apart, and that no bill become a law without the consent of both.— Trumbull's Connecticut, i. 102, 399. Maryland, February, 1639.- An assembly of the body of freemen made provision for a representative assembly (Chalmers' Annals, 213). The composition of this body was pecul iar. Griffith (Maryland, 7) says, that, "upon writs being issued by the governor, delegates elected by the freemen were to sit as burgesses, one or two for each hundred, with the persons especially called by the governor, and such freemen as had not consented to the election of others, or any twelve or more of them, including always the governor and secretary." The burgesses (Chalmers, 219) desired, in 1642, to sit by themselves; and, in 1650 (Griffith, 13), the assembly passed an act dividing themselves into two houses; the governor and secretary and council to be the upper house, and the burgesses the lower house; and all bills assented to by the major part of either to be the laws. Rhode Island, May, 1647.- Provision was made under the patent or charter, granted in 1644 by the Parliamentary Commission, for a representation from the towns, which discussed proposed laws before they were presented to a general assembly.— Arnold's Rhode Island, i. 203. By the charter of 1663, a governor, deputy-governor, and assistants were to be chosen annually at Newport; and deputies were to be chosen by each town. At first, all sat in one room. In 1666, there was an effort to have the deputies sit as a separate house; but the measure was not adopted till 1696.- Arnold, 327, 533. The governor and assistants, or magistrates, were the upper house; the deputies, the lower house. North Carolina, 1667.— Settlers were invited into this colony by the promise of legislative freedom. Williamson, i. 94. Hawks (i. 144) thinks there was an assembly in 1666; but the general assembly, under the charter, consisted of the governor, twelve councilors, and twelve delegates, chosen by the freeholders.- Chalmers, 524. At a later period, while under proprietary rule (Hawks, ii. 147), the general assembly was divided into two houses. New Jersey, 1668.- This proprietary colony was divided at first into East Jersey and West Jersey, which had separate assemblies: the first held in East Jersey was on May 26, 1668, and in West Jersey, Nov. 25, 1681.- Gordon's New Jersey, 44-48. In 1702, the two parts were united, a royal government formed, and a general assembly provided for, consisting of the governor, a council of twelve nominated by the king, and a house of representatives chosen by the freemen of the counties and cities. They sat together. In 1738, the council was made a separate branch; the governor withdrew from it, and no longer was the presiding officer.- Mulford's New Jersey, 335. South Carolina, 1674.- Settlers were promised a share in making the laws.- Ramsay's South Carolina, i. 30. In 1674, the freemen elected representatives, when, Ramsay says, there were (ib. i. 35) "the governor, and upper and lower houses of assembly; and these three branches took the name of parliament." The colony became, in 1720, a royal government; it was settled that the governor and council be appointed by the king, and the representatives be chosen by the people. The whole house was chosen at Charleston, where "there had been often great tumults."- Carroll, ii. 149. About 1716, the colony was divided into parishes; and it was provided that each parish should elect its representatives, "to be balloted for at the several parish churches, or some other convenient place mentioned in the writs, which were to be directed to the church-wardens, and they to make returns of the elected members; and of this act the people were very fond, finding it gave them a greater freedom of election."—Ib. ii. 149. In 1720, when the colony became a royal government, it was provided that the governor and council should be appointed by the king, and the representatives chosen by the people.- Ramsay, i. 95. New Hampshire, March 16, 1680.- By the decision of the crown, New Hampshire was separated from Massachusetts, and a commission constituted a president and council "to govern the province;" and this commission authorized the qualified voters of the four towns to choose an assembly. It consisted of eleven deputies, and sat as a distinct body; the council having a negative on its acts. The king engaged to "continue the privilege of an assembly in the same manner and form, unless he should see cause to alter the same." A Royal Commission, in 1692, provided for a governor and council, and a house of representatives, to be elected by the towns; both meeting separately, and acting as co-ordinate branches. Belknap, i. 139, 145. Pennsylvania, 1682.- In this colony, provision was made for a representative assembly under the Frame of Government of 1682; and also under forms tried in 1683 and 1696. In 1701, the charter agreed upon provided for an annual assembly to consist of four delegates from each county, or a greater number, if the governor and assembly should agree to it. This assembly was to choose a speaker and other officers, "to be judges of the qualifications and elections of their own members, sit upon their own adjournments, appoint committees, prepare bills, impeach criminals, and redress grievances, with all other powers and privileges of assembly, according to the rights of the free-born subjects of England, and the customs in any of the Queen's plantations in America."- Franklin's Works, iii. 155. In this colony (Douglass's Summary, ii. 317), the council had no concern in the legislation otherwise than advising the governor. The legislature had but one branch. Delaware, 1682.- This colony became a dependency on New York, but was purchased by William Penn. The three lower counties of the Delaware, New Castle, Kent, and Sus sex, claimed, under the charter of 1681, a separate assembly, which they obtained, but had the same executive as Pennsylvania. New York, Oct. 17, 1683.- The governor called an assembly, composed of seventeen delegates, who adopted a charter of liberties, apportioned the representatives to the counties, and claimed to be a free assembly.- Dunlap's New York, i. 134. In 1791, the first assembly convened after the Revolution, and consisted of seventeen delegates. The acts of this assembly are the first that were considered valid by the courts of law. Smith's New York, 87. The assembly, down to the Revolution, did not exceed twenty-seven members.— Dunlap's New York, i. 212. The council consisted of twelve, nominated by the crown, as was the governor, and sat by themselves. Georgia, 1754.- The first representative assembly was called by the governor under a form of government matured by the Board of Trade, and authorized by the king. It was composed of nineteen delegates from three districts, and (McCall's Georgia, i, 248) had power similar to other colonial assemblies. V FURTHER COLONIAL PRECEDENTS To balance a large state or society, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in this work: Experience must guide their labour: Time must bring it to perfection: And the feeling of inconveniences must correct the mistakes, which they inevitably fall into, in their first trials and experiments. (David Hume, Of the Rise and Progress of the Arts and Sciences, Essays and Treatises, 1742, edition of 1825, Vol. I, p. 117.) To any one who had inhabited a colony governed under a charter the effect of which on the validity of a colonial law was certainly liable to be considered by the Privy Council, there was nothing startling in empowering the judiciary to pronounce in given cases upon the constitutionality of Acts passed by assemblies whose powers were limited by the Constitution, just as the authority of the colonial legislatures was limited by charter or by Act of Parliament. (Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 1885, 8th edition, 1915, p. 160.) The free fruition of such liberties Immunities and priveledges as humanitie, Civilitie, and Christianitie call for as due to every man in his place and proportion without impeachment and Infringement hath ever bene and ever will be the tranquillitie and Stabilitie of Churches and Commonwealths. And the deniall or deprivall thereof, the disturbance if not the ruine of both. We hould it therefore our dutie and safetie whilst we are about the further establishing of this Government to collect and expresse all such freedomes as for present we foresee may concerne us, and our posteritie after us, And to ratify them with our sollemne consent. Wee doe therefore this day religiously and unanimously decree and confirme these following Rites, liberties and priveledges concerneing our Churches, and Civil State to be respectively impartiallie and inviolably enjoyed and observed throughout our Jurisdiction for ever. 1. No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged under colour of law, or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country waranting the same, established by a generall Court and sufficiently published, or in case of the defect of a law in any parteculer case by the word of God. And in Capitall cases, or in cases concerning dismembring or banishment according to that word to be judged by the Generall 2. Every person within this Jurisdiction, whether Inhabitant or forreiner shall enjoy the same justice and law, that is generall for the plantation, which we constitute and execute one towards another without partialitie or delay. (The Liberties of the Massachusets Colonie in New England, 1641, Old South Leaflets, Vol. VII, No. 164, p. 261.) In appealing to the common law, as the standard of exposition, in all doubts as to the meaning of written instruments; there is safety, certainty, and authority. The institutions of the colonies were based upon it; it was their system of jurisprudence, with only local exceptions, to suit the condition of the colonists, who claimed it as their birth-right and inheritance, 9 Cr. 333, in its largest sense, as including the whole system of English jurisprudence, I Gall. 493; the inexhaustible fountain from which we draw our laws, 9 S. & R. 330, 39, 58. So it continued after the colonies became states, in most of which the common law was adopted by acts of assembly, which gave it the force of a statute, from the time of such adoption, and as it was then; so that in the language of this Court-" At the adoption of the constitution, there were no states in this Union, the basis of whose jurisprudence was not essentially, that of the common law in its widest meaning; and probably no states were contemplated, in which it would not exist." 3 Pet. 446, 8. It is also the basis on which the federal system of jurisprudence was erected by the constitution, the judiciary and process acts, which refer to cases in law and in equity," "suits at common law," " "the common law, the principles and usages of law" as they had at the time been defined and settled in England; 5 Cr. 222; 3 Wh. 221; 4 Wh. 115, 16; 7 Wh. 45; 10 Wh. 29, 32, 56, 8; 1 Pet. 613; and were adopted as then understood by the old states. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, pp. 3-4.) It is in the colonial charter that we find the germ of American constitutional law. Each of these, whether of the proprietary, provincial, or republican type, was the fundamental law of the jurisdiction, according to which its government was to be organized and administered. Except that it was not self-imposed, and that it was subject to revocation without the consent of those for whom it was made, it answered very nearly to our modern conception of what a Constitution should be. It was a brief document, laying down a general scheme of political organization, granting large powers of legislation and administration, and imposing a few, and but a few, fundamental restrictions. (Simeon E. Baldwin, Constitutional Law, Two Centuries' Growth of American Law, 1701-1901, 1902, þ. 11.) The supervising power of the crown resided nominally in the King in Council; really in a committee of the Council without the King. Certain members of the Privy Council were thus made a standing tribunal, by the name of the Lords of Trade and Plantations. By their authority any colonial statute could be set aside as unauthorized by the charter, and the judgments of the colonial courts re-examined and reversed. From 1718 down to the treaty of peace with the United States in 1783 they were provided with a special counsel of their own, besides being entitled to call on the Attorney-General and SolicitorGeneral for advice. In one respect this royal prerogative, which was not infrequently exercised, was favorable to the development of American liberty and law. It secured a certain unity of movement in their growth. It produced symmetry of form. It built up a sentiment of common nationality. It promoted the study of legal institutions. It helped to rear an American bar, worthy of the name. (Simeon E. Baldwin, Constitutional Law, Two Centuries' Growth of American Law 1701-1901, 1902, þ. 12.) In order to prepare the way still further for the proposition to be set forth in this article, it is necessary to say that the Federal Constitution is not only not a fiat-constitution projected from the brain of the Fathers, nor a copy of the contemporary constitution of England; it is also not founded upon any previous body of institutions which existed merely in the form of customs. As it is itself primarily a body of written law, so it is based upon successive strata of written constitutional law. (William C. Morey, The Genesis of a Written Constitution, Annals of American Academy of Political and Social Science, 1890–91, Vol. I, p. 533.) The law of corporations was the law of their being for the four original New England colonies. Of whatever else they might be ignorant, every man, woman, and child must know something of that. It governed all the relations of life. This was true, whether the government to which they were subject was set up under a charter from the crown or those who held a royal patent, oras in New Haven - was a theocratic republic, owing its authority to the consent of the inhabitants. The one rested on the law of private corporations de jure: the other on that of public corporations de facto. (Simeon E. Baldwin, Constitutional Law, Two Centuries' Growth of American Law 1701-1901, 1902, p. 261.) The proceedings of a legal character in which the colonies had always been most interested were those which took place in England concerning their own charters. . . . All the earlier colonial charters were such as were appropriate for the regulation of a trading adventure, or land speculation. Those to whom they were granted occupied the relation of shareholders, and elected their boards of direction and government to sit in England. Long before 1701, these boards in most of the colonies had been replaced by local legislatures, meeting on American soil, and the authority of foreign proprietaries was soon to be withdrawn in all. . . . It is not surprising that English and American lawyers should have been inclined to look at the powers of the colonial assemblies and courts in very different ways. The doings of the original companies, under which the British plantations here were made, were, of course, as they took place in England, fully subject to control by the English courts. The system of judicial appeals to the King in Council was worked out with more and more precision as the eighteenth century advanced. Some of the judgments rendered by the King in Council denied validity to colonial |