The Civil Government of the States, and the constitutional history of the United States ... Second edition

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THE CIVIL GOVERNMENT OF THE STATES, AND THE CONSTITUTIONAL HISTOEY OF THE UNITED STATES. By P. CUDMORE, Esq., Counsei.lor-at-Law, j/ Author of the "Irish Republic," etc., etc. SECOND EDITION. New York : for sale by p. j. kenedy, 5 barclay street. 1875. Entered according to Act of Congress, in the year 1875. By P. CUDMORE, In the Office of the Librarian of Congress, at Washington. DEDICATION. TO THE MEMORY OF THE Fathees of the Constitution of the United States of Ameeica, and the Advocates of Libeety, this volume is most eespectfully dedicated BY THE AUTHOR.

Preface

. The object of the author has teen to condense into one volume the Colonial, General, and Constitutional History of the United States. This volume is a digest of the writings and speeches of the fathers of the Constitution of the United States, eminent American and foreign Jurists, the journals and annals of Congress, the Congressional Globe, the General History of the United States, the Statutes of the several States, the Statutes of the United States, the Decisions of the Supreme Courts of the several States, the Opinions of the Attorneys General of the United States, and the Decisions of the Supreme Court of the United States ; of extracts from De Tocqueville, the Madison Papers, the " Federalist," " Elliott's Debates," the writings of Jefferson, Adams, Hamilton, and Vattel, and of extracts from Jefferson, and other eminent authors on parliamentary law.

The platforms of political parties are also given. The chapters on Colonial History and Civil Gov ernment will be found, at this time especially, instructive and useful. The author most respectfully hopes that this work will be welcomed by the legal profession, the press, and the statesmen of America. The quotations from the several authors are given in the language of the authors themselves. Those who wish to understand the structure of the Gov ernment of the United States (State and Federal), will find this volume a useful, reliable, and convenient manual and book of facts and reference. The causes and consequences of the reeent American Civil War are given. The history of Land Grants, the Homestead Law, and the laws pertaining to aliens and naturalization, will be found instructive. The author has studiously endeavored to make this work a useful treatise on our complex form of Government, including Colonial, State, Federal, Territorial, County, Town, and Parish.

For the terms of office of Governors and Members of the State Legisla tures mentioned in this book, the reader is referred to the Constitutions of the several States as they were in 1848. New Yoek, July, 1875. THE CIVIL GOVERNMENT OF THE STATES, AND THE CONSTITUTIONAL HISTORY OF THE UNITED STATES.

Chapter I

— COLONIAL HISTORY. The first settlement of Englishmen in North America was attempted in the reign of Queen Elizabeth. Her first patent was issued to Sir Humphrey Gilbert in 1578. An abortive attempt to settle a colony in Virginia wa3 made by Sir Walter Raleigh, in this reign, under a transfer of Gilbert's patent. In the year 1003, one hundred and ten years after the discovery of the New World, there was not an Englishman in America. In 160G, the Spaniards had established posts in Florida, and the French had settlements in New France, afterwards named Canada. James I of England, who succeeded Elizabeth, by an ordinance, April 10, 1606, divided all of North America lying between 34 and 45 degrees of latitude into two districts. The first, district was called Southern Virginia; and the second, Northern Virginia (Plymouth Colony) which was changed to New England.

Southern Virginia was granted to the London company in 1607, by James I, and Northern Virginia, (Plymouth Colony) or New England was granted to the Plymouth company November 3,1620, composed "of forty noblemen, knights and gentlemen, called the council," established at Plymouth, in the county of Devon, for the planting, ruling, and governing New England in America, with the Earl of Warwick as head of the corporation. South Virginia extended from the parallel of 34 to 40 degrees, and from the Atlantic to the Pacific. The first settlement, under the Grant to the London company, was made at Jamestown, Virginia, in 1607. The management of the colony was given to Christopher Newport and Captain John Smith. "The general superintendence of the colonies was vested in a Council, resident in England, named by the king, and subject to all orders and decrees under the sign manual; and the local jurisdiction was intrusted to a Council also named by the king, and subject to his instructions which was to reside in the colonies.

Under these auspices, commenced, in 1607, the first permanent settlement in Virginia." — Moore's Int. to the lives of Govs. Ply. & Mass. p. 9. In 1607, a new charter was granted to the company. The colony was to be governed by a governor and council. This was a close corporation. The aristocracy of England, at this period of English history, had little respect for the people. Indeed the idea CsVEL GOVERNMENT OF THE STATES. of a government of the people was repugnant to the aristocracy or wealthy classes of England. The governor was appointed by the Company. — Quackenbos, 73. The people of England had no idea of a Town Meeting as a body politic or a town meeting — " where the people met in their aggregate capacity to elect local officers." For in England, the country was divided into counties, which were represented by Knights elected, generally, by the land owners.

There were also certain boroughs represented by burgesses, generally, representing the mercantile interests. The idea of the people meeting in their collective capacity, as in the Republics of Greece, was unknown in England. — Blackstone, vol. i, pp. 159-160. In 1619, the people of Virginia were able to obtain a voice in the government of the colony. Virginia colony was divided into eleven boroughs; and two members from each borough formed the House of Burgesses, in imitation of the British House of Commons. This assembly was the first house of representatives in America. — Quack. 76. As the people were poor and lived in log-cabins they did not think of forming a House of Lords. It might be here remarked that the Southern Colonies followed the institutions and laws of old England which suited their wants and condition.

That the people of all the colonies borrowed their laws from the English model, except the Puritans of New England, who followed the laws of Moses — the Bible was the basis of their laws and government. — Moore's Lives Govs. Mass. 77. And as the colonists of Virginia were of the Church of England, they established parishes and maintained the clergy with tithes as in England. Slaves were brought to Virginia in a Dutch man-of-war. The crown of England became jealous of the extensive powers and territory of the London company. And at last King James I dissolved this great monopoly — this overgrown corporation. The executive powers were in this corporation. King Charles I recognized the authority ofthe Assembly of Virginia. And as the struggle in England was between Charles and the Parliament — the latter being Puritans, and the former of the Church of England, Virginia took part with the king- The authorities banished all who would not use the liturgy of the Church of England.

So Virginians, as well as the Puritans were intolerant — both established church and state. — Quack. 101. We see an antagonism between the South and New England when both held slaves. In 1758, the legislature of Virginia passed an act that the people might commute for the tobacco, in money, a tribute which had to be paid to the ministers of the Church of England. For in the early days of the colony tobacco was the usual currency ; for nearly all payments were made in tobacco, as afterwards in the Western States, men had to take what was then called " store pay, " that is, an order on a store for goods. Virginia, in a great measure, retained the old English aristocratic customs and prejudices of caste. The land holders, as in the old country, in that age, were the aristocracy. They were called the upper class, and the landless the lower class.

The upper class was principally attached to the crown. The people of the South and of New England were dissimilar in politics, religion, manners and customs — they were not of the same race. The Virginians were the descendants of the Normans — " Cavaliers; " and the Puritans of the Saxons, or "Roundheads." The colony of Virginia restricted the right of suffrage to householders ; and made the English church the state church. And it compelled attendance at the wor ship of this church under penalty of twenty pounds. Penal laws were passed against Quakers and Baptists. The colonial legislature and Governor Berkeley were the embodiment of despotism. Berkely is reported to have said, "I thank God that there are no free schools or printing, and I hope that we shall not have them these hundred years!

" This w. s the status of the colonial legislature of Virginia until Bacon's rebellion, in .676, when the old intolerant legislature was dissolved and a more liberal i_ne elected. The governors of the colony were appointed by the king. The Carolinas — North Carolina. The Carolinas were settled under the auspices of Charles II, of England. she colony was granted, in 1663, to Edward Clarendon, Lord Albemarle, the Earl of Shaftesbury and others. The people established a House of Representatives. A short time after this, the colony was divided into North and South Carolina. In 1689, North Carolina banished her proprietary Governor. — Willard, p. 120. South Carolina. In 1685, the French Hu-gue-nots, or French Protestants, settled in South Carolina. Governor Colleton was sent over from England, by the proprietors of the colony to govern the people.

He was opposed by the Assembly of the people, and finally banished from the colony, in the reign of William and Mary. — Quack, p. 120. So the people of the Carolinas, dressed in "homespun and deer-skins," were considered the "freest of the free." They could not yield to the despotism of the proprietary governors. They wanted to rule themselves. They wanted a home governor. Maryland. (After the Queen, Henrietta Maria of France.) Maryland, though a part of the territory granted to the London company, was granted to George Cal vert, Lord Baltimore, in 1632. Though a Lord, he was democratic in principle. His son Cecil granted liberty of conscience to all men. The first settlement of the colony was made at the village of St. Mary's. ' "Mary land was the first to proclaim universal suffrage, and to introduce the most democratic forms into the conduct of the government." — De Tocqueville p. 32.

Maryland was settled principally by Catholic Irish who granted liberty of conscience to all who believed in Jesus Christ. The majority of the settlers were Irish Catholics. Maryland was a refuge for all who fled from religious persecution from Europe, New England, and Virginia. The people met in one assembly and voted. Every freeman had a vote without religious or property test. The assembly was composed of members chosen by the people. At first the legislature was composed of one house, but afterwards of two houses. The Upper House was chosen by the proprietors, and the Lower House by the people. The Protestants, who flocked from persecution and took refuge in Maryland, soon obtained a majority, and strange to say persecuted the Catholics. Delaware, The colony of Delaware was founded by Swedes and Fins.

It was con quered by the Dutch; and brought under the dominion of New Nether lands, the name given to the Dutch colony in North America. The colonists remained quietly under the Dutch Government and with the Dutch passed under the dominion of England, in 1664. New York. In 1625, Peter Minnets bought the whole Island of Manhattan from the Indians for $24. The Dutch built the city of New Amsterdam, now New York. The Hollanders settled on Long Island, Staten Island, and New Jersey. The colony was under the control of the home government and the governors of New York. The Governors of New Netherlands were military governors; the people had no voice in this military despotism. The will of the governor of the garrison was supreme. At length de puties from the Dutch villages met in Assembly, and they demanded a government of the people.

The government would not concede to their demands. The Dutch had no idea of a town meeting. In 1664, New Netherlands fell under the dominion of England, and it was called New York, in honor of the Duke of York, afterwards King James II, of Eng land. The power of Holland ended in North America. New Jersey. In 1664, the region between the Hudson and the Delaware was granted to Berkeley and Carteret, and was called New Jersey. The people established a colonial Assembly. The early settlers were Quakers and Dutch. Pennsylvania. The Quakers, goaded by persecution in their native England, sought the wilds of America, and settled in New Jersey, in 1675. The early settlers of New Jersey were Quakers and Dutch. In 1681, William Penn obtained from Charles II a tract of land west of the Delaware, which was called Pennsyl vania, or the woody land of Penn.

Within this territory were settlements of Dutch and Swedes. The spot where now stands the city of Philadelphia was purchased by Penn from the Swedes. Penn also purchased the good will of the Indians. The people who emigrated to Pennsylvania with Penn were Englishmen. They followed the institutions of England, so far as they were suitable to their condition and circumstances. They divided tho colony into counties, the same as in England. Six members were chosen annually from each county to the Assembly or Legislature. The people were represented in the Assembly. They had no idea of a town meeting, as a local government. All freemen had a vote who believed in God and kept the Lord's day holy. Murder alone was punished with death. — Quackenbos 124. Penn was proprietary governor. Georgia. In 1732, James Oglethorpe, a member of the British Parliament, obtained from George II a charter of the country west of the Savannah river.

Oglethorpe was the proprietary governor. In 1752, the trustees resigned Oglethorpe's charter to the king. The Kings of England were willing enough, at first, to grant large tracts of country to favorites with a view to settlement. They allowed their favorites to exercise supreme authority while the settlements contained but a few persons, who had to contend with poverty, famine and the savages. But when the colonies became populous and the people had money and property to be taxed, the kings became jealous and wished to revoke the charters and take the government of the colonies under their immediate control and authority. Moreover, they dreaded the idea of self-government which was making such rapid strides in the colonies. They wished to have governors over the colonies chosen by the crown.

From the moment that the Kings of England revoked or com pelled the colonies to surrender their charters, we may date the struo-<rie for independence, which increased in intensity as the colonies acquired wealth intelligence and population. The colonists were thrown on their own resources on the wild shores of America, to contend with poverty, famine and hostile Indians. In the stern school of adversity they learned th science of self-government. While in their log-cabins, dressed in home spun and deer-skins, they lost respect for royalty and aristocracy. The youth born and educated in the colonies, in the wilds of the forest, in con tact with the "free and independent Redmen," disdained not only the governors sent over by England, but all manner of royalty and aristocracy. Thus, we see that the Southern States were settled by a very different class of Englishmen from those who settled New England," while the inhabitants of the Middle States of New York, New Jersey, Delaware, Pennsylvania, and Maryland differed from both, they being made up of different nation alities and religions.

CHAPTER H.— NEW ENGLAND. The first settlement of New England was made by the Puritans, a peculiar people, who dissented from the Church of England, "as by law established," in 1602, in the reign of James I, King of England. They formed an independent congregation. They elected their own minister. Richard Clifton and James Robinson were chosen. — Moore's Lives Govs. Ply. and Mass. p. 12. Persecution was the order of the times. Archbishop Banchroft and Laud, of Canterbury, persecuted the Puritans with unrelenting severity and cruelty. Exposed to all the rigor of English penal laios, which the British government could enforce, the Puritans were compelled to leave their homes in their native land, and seek new homes in foreign countries. Robinson and his congregation fled from the cruel laws of England and took refuge in Holland, in 1009.

In consequence of the war between Spain and Holland the Puritans resolved on emigrating to America, where they would be free to retain their religion, laws, customs and language unmolested. They considered themselves in the like situation as the Israel ites, and did not want to mix with any other people or religion. They feared that if they should remain in Holland their people would become absorbed in a foreign nation. — Ibid. 14. In 1617, Robert Chushman and John Carver' were sent to England to negotiate with the London company with a view to settle in Virginia, and also to ascertain if the king would grant liberty of conscience. Though the king promised that he would not molest them, lie refused to grant them, by public authority under the seals, liberty of conscience. After some negotiations with the London company of Vir ginia a patent was obtained under the company's seal, in the name of John Wincomb, who was to accompany the Puritans to America. — Ban croft, vol. i, p. 305.

This patent and the proposals of a London merchant, named Thomas Weston, were carried to London, in 1619, for the consideration of the Puritan congregation. November 3, 1620, a territory, extending from 40 to 48 degrees of North latitude and from the Atlantic to the Pacific, was granted to a company of forty persons, with the Earl of Warwick at its head, by James I. This patent is the basis of all subsequent grants, patents or charters of New England. — Moore's Govs. Ply. and Mass. 10. The company had full control over this vast territory, subject to the authority of the king. Meantime, iu 1620, Weston went to Leyden, Holland, and the Puritans entered into an agreement with him, that he should supply them with money and shipping to take them to America. The Speedwell, commanded by Capt. Reynolds, and the Mayflower by Capt. Jones, sailed for America.

Both ships had put to sea, but the Speedwell was unfit for the voyage, and on September, 1620, the Mayflower, with one hundred and one passengers, besides the ship's officers and crew, sailed for America, with the intention to settle within the jurisdiction of the Virginia Company, on the Hudson river. But they were driven further north by the winds and perils of the sea, and by force of necessity they landed on Plymouth Rock. As many New England orators and public men claim that their ancestors came over in the Mayflower, we give the following for their benefit : The names of the subscribers are placed in the following order, those who brought wives, marked with a dagger (f), and those who died before the end of the next March, distinguished by an asterisk (*). 1. Mr. John Carver, f -•----.- 8 2.

Mr. William Bradford, t - - - - - - 2 3. Mr. Edward Winslow, t ----- 5 4. Mr. William Brewster, t- - - - - -6 5. Mr. Isaac Allerton, I------6 6. Capt. Miles Standisli, t- - - - - - 3 7. John Alden, ---..-•. 1 8. Mr. Samuel Fuller, ------- 2 9. * Mr. Christopher Martin, f ----- 4 10. * Mr. William Mullins, t - - - - - - 5 11. * Mr. William White, t (1) - - - - - 5 12. Mr. Richard Warren, -- - - - - -1 13. John Howland, (2) 14. Mr. Stephen Hopkins, t- - - - - - 8 15. * Edward Tilly, t 4 16. * John Tilly, t 3 17. Francis Cook, -----.-2 18. * Thomas Rogers, ------ 2 19. * Thomas Tinker, t - - - - - - - 3 20. * John Ridgdale, t------2 21. * Edward Fuller, t - - - - - - - 3 22. * John Turner, ------- 3 23. Francis Eaton, t- - - - - - -3 24. * James Chilton, f ------ 3 25. *John Crackston, (3) - - - - - 2 26.

John Billington, t - ... 4 27. * Moses Fletcher, ----... 1 28. * John Goodman, ------- 1 29. * Degory Priest, (4)- - - - - . -1 30. * Thomas Williams, ----.. 1 31. Gilbert Winslow, -------I 32. * Edmund Margeson, ------ r \ 33. Peter Brown, - - - - . . \ 34. * Richard Britlerige, ------ i 35. George Soule, (5) 36. * Richard Clarke, ----.._ \ 37. Richard Gardiner, ------ 1 38. * John Allerton, ------- 1 39. * Thomas English, ----.. 40. Edward Dotey, (6) - 41. Edward Leister, (6) - .... Total persons ----.. joi Of whom were subscribers to the compact - - Besides a son born in Cape Cod Harbor, named Peregrine. (2) Of Governor Carver's family. (3) Morton writes his name Craxton. (4) In Morton, Digery Priest. (5) Of Governor Winslow's familv. (6) Of Mr. Hopkins' family." (Moore's lives Gov. Ply. & Mass. page 26.)

The Virginia patent was useless, as they had settled without the jurisdiction of the London company, and within the limits of the Plymouth company. They had no authority from any government or power. They were reduced to a state of nature and could establish a government for themselves. They had no protection from the government of England, but were treated as persons outside the pale of the British laws. Being reduced to a state of nature, they were free to make laws for their own protection and safety. They claimed the right to choose their own govern ment and make their own laws. — Vide Vattel's Law of Nations, Book i, chap. 4. pp. 17, 18, 19, 20, 21, 22. Blackstone's Comm. vol. i, page 245; 1 Kent's Comm. pp. 208,209. The emigrants to New England and the other colonies had this advantage that they had "neither lords nor common people, neither rich nor poor."

On the voyage one man died, and a boy, the son of Stephen Hopkins, was born — called Oceanus. November 10, 1620, the Mayflower anchored in the harbor of Cape Cod 42 degrees north latitude, within the territory of New Plymouth. Here the first Englishman, Peregrine White, was born in the colony, on board of the Mayflower, in Cape Cod harbor, Nov. 1620. The last survivor of those who came over in the Mayflower was Mary Church man, daughter of Isaac Allerton. The Pilgrims met in the cabin of the Mayflower and drew up articles of association. This may be called the first convention in the United States. These articles were a constitution for the government of the colony. At this meeting, they pledged themselves to be governed by the rule of the majority — "to submit to such government and governors,as we should by common consent agree to make and choose."

The Puritans were opposed to monarchy, so thought King James I in 1604, when he said of the Puritans, "You are aiming at a Scots presbytery, which agrees with monarchy as well as God with the devil! I will have none of that liberty as to ceremonies." — Bancroft, vol. i, p. 298; Neal, ii, 52; Moore's Lives Govs. Ply & Mass. p. 24, with notes. After this compact was signed, John Caiver was elected governor, by a unanimous vote, for one year. This was the first government of the people in America, where the people made their own laws, elected their own officers, civil, military and ecclesiastical, without patent, grant, charter or authority from any king or power in the world. This was establishing a democratic government in the wilds of America. The Puritan clergy were elected by the congregation.

The Puritans were a joint-stock company. They mortgaged their labor to London merchants who supplied them with means to emigrate to America. They had to work on the credit system. The London merchants who supplied the Puritans with ships and money had a monopoly of the trade of the colony. They were adventurers. They were also shareholders in the colony. They relinquished all their rights to the colony for £1,800 sterling. There was no oath of office required of John Carver, as he had no patronage. There was no danger of political corruption. The politicians did not get rich on the people's money. The people were poor, frugal, and they possessed a stern and unflinching honesty. They did not want idlers ; they de spised " a proud heart, a dainty tooth, a beggar's purse, and an idle hand." From the nature of their compact, being a joint-stock company, they established a community of goods.

They planted one field in common with corn; they found the seed in an Indian mound. All had to work, even the governor of the colony. They worked like bees. They had no drones in the hive. Oh, shades of the Puritans 1 ! no Long Branch for the government to live in kingly style! ! ! While every man worked in common, the people suffered great priva tions, and in some instances suffered from famine — at one time they were so far reduced as to live on five grains of parched corn each daily. They would have perished only for the supply of fish. They had to share with the new emigrants who came to the colony. In 1623, Governor Bradford is re ported to have said, "By the time our corn is planted, our victuals are spent ; not knowing at night where to have a bit in the morning, and have neither bread nor corn for three or four months together." — Moore 68.

Such was the state of the colony during the time they had a community of goods. So the colonists, in violation of their agreements with the London ad venturers afore-mentioned, in the spring of 1623, agreed that every ''family should plant for themselves, on such ground as should be assigned to them by lot." They had but one boat in the whole colony, and parties of seven men fish ed in their turn for the benefit of the whole colony ; when a deer was killed it was divided among the whole people of the congregation or colony. The people, while a community of goods lasted, lived whole days on fish and ground-nuts ! They were in debt and had to pay 30 per cent, per annum for money. But after every man was able to work for himself, industry was en couraged, and the people of the colony, in 1629, were free from the debt they owed the London adventurers, and they were freemen !

So much for communism. There never was a time, since Adam was expelled from Eden, more favorable than this to try the experiment of a community of goods, as the Puritans were all of one nation, religion, manners, customs, and habits and spoke the same language. They were one congregation — all governed by public opinion and religion. They were as one family. Yet, while they were one corporation — all one partnership concern — all possessing a com munity of goods, they were in a state of starvation. But when every man was for himself, they soon paid off the debt of the colony and sent for their friends to Holland. The pilgrims followed the example of the Jews — like them they claimed to be the chosen of the Lord. They united church and state. The government of the colony was composed of the church and the congregation. — Moore's lives, Govs.

Ply. & Mass, 284, 289, 290, 291, 300, 318. The governor was elected by the people, in town meeting, the same as we now elect Town Officers. The whole body of the people or congregation elected their own officers, and transacted all business pertaining to the church and the state. While Governor Carver lived, the whole people had a vote. Both clergy and congregation, with the governor as chairman, met in one as sembly, like the Greek Republics, and made laws and regulations for the colony. The town meeting was both court and legislature. The governor possessed no power but that of a magistrate. He could arrest criminals, but they were tried before the whole body of the people, as judicial and legislative power was then vested in the whole body of the people in town meeting. The governor presided the same as the foreman of a Grand Jury.

He was the sole executive officer of the colony. He had no patronage, as he had neither the power to nominate or appoint to office. All officers, civil, religious and military, were elected by the people. The governor was moderator and with his deputies presided at town meetings — votin-r was CONSTITUTIONAL niSTORY OF UNITED STATES. 13 by ballot. In time, the franchise was confined to freemen, who had taken a freeman's oath. There was no distinction or exemption from military duty — all had to stand "watch," even the clergy. The highest military officer in the colony was Captain Miles Standish. The town was impaled, and cannon planted on the roof of the church. The people met in town meeting on a common plain. It was an assembly of the sovereign people — for sovereignty was in the people ; for they acknowledged no higher law-making power.