Constitutional history of the United States

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Contents

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Introduction 1

I. Period of Colonization

Introduction

In the work now presented I have tried to bring within the compass of a medium-sized volume the essential historical facts necessary to gain a clear and comprehensive view of our national Constitution as it exists at the present time. The fact is historically indisputable that our Constitution has been a subject of gi'owth. What was placed in the written document by the constitutional fathers, who assembled in Philadelphia in 1787, was the condensed wisdom of a century and a half of colonial experience in Constitution forming and in contending for constitutional principles, in addition to all the knowledge they could gather from the study of the history of other nations. But the fathers who drew the Constitution in 1787 had little conception of what that instrument would become through a century's growth, because they could not at that time comprehend what a marvellous expansion there would be of the national germ which they saw sprout and commence to grow, and which the succeeding generations have seen come to a fuller perfection.

Important additions have been made to the original Constitution by way of amendment, but scarcely more so than those which have come to it through the process of the gradual unfolding of its unexpressed meaning, which has naturally followed the expansion of our national domain, the development of our national resources, the meeting of new responsibilities in government, the contending with new difficulties which have confronted us in the execution of our newly acquired powers.

While we have a written, and therefore, in a certain sense, a settled Constitution, it is an elastic one. Had the original Constitution of 1787 been so limited by its own terms that it could not have been construed to mean more than was actually and clearly expressed by the language in which it was clothed, our Government would soon have gone to wreck or have remained a feeble and insignificant member of the sisterhood of nations, unless by amendment of the old, or by the adoption of a new constitution new power had been given it. Fortunately it was not so framed.

With no express power in the Constitution for the general government assuming the debts of the several States contracted during the Revolutionary War, nor for funding the entire national debt thus increased, nor for establishing a national bank, Hamilton was able to find authority in the Constitution for each of these measures when that instrument was interpreted in the light of the financial needs of the country and with a desire to carry into effect the purpose for which the Constitution was framed and adopted. While there is no section in the Constitution having the slightest reference to an expansion of our territorial limits, authority to make such extension was found by statesmen to whom that problem was presented, even though Jefferson was unable to see it clearly. Although the Constitution gives Congress no express authority to construct, or to aid in constructing, canals or railroads, the discovery of such a power inhering in a government which was authorized to regulate commerce has made it possible to connect the Atlantic with the Pacific by both iron and water, Buchanan and his school could find no authority in the Constitution to coerce a sovereign State. But because such authority was there found by those who succeeded him in the administration of the Government we have one strong nation to-day instead of two or more weak confederacies.

It is well for us as a people that the Constitution, in addition to the powers expressly conferred and enumerated, contains the provision that Congress shall have power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

That the Constitution contains inherent powers which are found in no one section, which are not definitely expressed or described in any language that we can there read, was believed at the time of its adoption, and has been the prevailing opinion of the greatest statesmen who have lived to interpret and administer it since. To somewhat restrict Congress in the exercise of some of these unexpressed powers was the purpose of several of the amendments which were proposed by the conventions of the people who adopted the Constitution, and which were subsequently submitted by Congress and ratified by the States. I have believed it to be proper in a constitutional history to call especial attention to this feature of our Constitution and to make its importance somewhat prominent.

But while our Constitution is, as I have stated, an expanding one, still it is a written one whose meaning is to be sought in the instrument itself. And therefore its interpretation is to be governed by rules very differ ent from those which are applicable in construing the British Constitution. This fact is not to be lost sight of in the matter of writing a constitutional history. Were one writing a constitutional and political history of the two countries the mode of treatment might properly be substantially the same for both. But in writing purely a constitutional history, matter which could very properly form a part of a work treating of an unwritten constitution, like that of the British Empire, might be inappropriate in a work treating of a written constitution, like that of the United States. In the work here presented I have aimed to treat of no poHtical history which does not have a direct bearing on some feature of constitutional interpretation or growth.

There are those who read history as they read an algebraic problem, and having ascertained a certain number of facts, they seek for the expected result with the same confidence as they look for the unknown quantity at the conclusion of the solution of a problem by the rules of mathematics. I have never believed in that kind of historical research, nor do I believe that a true history, either political or constitutional, will be presented if written from that standpoint. He who believes that all political and governmental action is dictated in the party caucus and convention will never be able to either write or read and interpret American constitutional history.

That through the course of our political development and constitutional growth there has run an influence unknown to any political party, that over our destiny as a nation a power has presided of which both the politician and the statesman have generally been ignorant, that results in government have been reached and ends attained in the establishment of popular rights which were contrary to the expectation of those who supposed they were directing public affairs, is a fact so evident that to disregard or deny if is to banish from our consideration one of the controlling elements in the evolution of our constitutional government.

We read of an Eastern monarch who, because of his assumption of power and disregard of God's claims, was driven from men and compelled to make his habitation with beasts, and to eat grass as oxen, until he learned that "the Most High ruleth in the kingdom of men and giveth it to whomsoever He will." Some of our modern statesmen and writers have not been as good students of history as was Nebuchadnezzar, for they have never learned what he, in his retirement, was brought to acknowledge, that before the Most High "all the inhabitants of the earth are reputed as nothing; and He doeth according to His will in the army of heaven and among the inhabitants of the earth; and none can stay His hand, or say unto Him, What doest thou ?"

In the preparation of this volume I have entertained the belief that there is a divine control in the affairs of men, and that this control is manifested in many ways in the development of the government and institutions of a people. It seems to me that through the gradual unfolding of a lofty purpose in the development of the people is the divine plan most clearly manifested. And because of such divine manifestation I believe that most of that which is worth preserving comes from the people. I have felt that the best results in government and the highest standard of constitutional attainment are to be looked for in those efforts which have sprung directly from the people. It took a century of the best thought of the people to reach the truest and the most approved construction of our fundamental law. We rightly attribute great merit to Hamilton, and Marshall, and Story, and Webster, for their masterly exposition of our

Constitution. But the best thoughts of the greatest minds have, in some way, been made possible by, and are but the concentrated thought of, the people. The highest morality is worked out by a desire on the part of the people to live better lives. And the best conception of constitutional government yet attained has not sprung alone from some master mind, but has been developed through the experience of the people in their daily lives. I have, therefore, thought it necessary in order to get a true understanding of our constitutional history to trace the line of development which has taken place in the experience of the people and which has finally crystallized into constitutional law. In so far as I have made this plain I feel that I have succeeded in accomplishing the object I had in view in writing this volume.

I

PERIOD OF COLONIZATION

CONDITIONS IN ENGLAND AT TIME OF COLONIZATION

As individual ability, habits, and character are to be studied in the light of inherited tendencies through generations of ancestry, so American constitutional history is to be fully understood only by looking into those institutions out of which our own have sprung. If one would ascertain the origin of the Constitution of this country he must seek for it among the records treating of the fierce conflicts between king and people, of the growth of chartered rights, of the development of parliamentary government, in the island home of those who first planted free institutions on the American continent.

In "European Constitutional History" I have traced somewhat in detail the growth of English liberty and the history of representative government. In reference to this preliminary work I shall do no more in this connection than to state conclusions. American colonization was commenced and, except as their rule was interrupted by Parliament and Cromwell, for three-quarters of a century was continued under the rule of the Stuarts. During the reigns of the Houses of York and Tudor the crown had, in a large measure, concentrated In itself the exercise and control of those forces in government which the people had theretofore, by centuries of contest with royalty, secured as the safeguard of their civil liberties. But popular liberty was dormant rather than dead, and only needed favorable influences to cause it to spring forth anew and with greater vigor than ever. The high ideas of royal prerogative entertained by the several members of the House of Stuart, their natural tendency to absolutism in government and tyrannical rule, added to their general lack of ability, formed the occasion for the people to reassert their ancient rights and privileges.

Each time the King interfered with the legitimate exercise of parliamentary rights the people became more determined than before to relieve themselves from arbitrary rule. Forced benevolences, compulsory payment of ship money, and illegal taxation of every kind which the King could devise for the purpose of filling his exchequer were insufficient to meet the necessary expenses of government, and, though unwillingly, the people had to be appealed to for parliamentary aid. Thus, during all the history of this House, notwithstanding the most strenuous exertions of the King to maintain, strengthen, and extend the royal prerogatives, were the rights of the people and the constitutional doctrine that Parliament alone was invested with authority to enact laws and levy taxes, being better established and more generally exercised.

It was in these struggles and amid the development of these principles that those champions of human liberty were reared who planted, and through their early years nourished, the free institutions which we to-day enjoy. While England had no one document embodying her constitution and the fundamental rights of the people, she had her Magna Charta, her almost numberless royal charters confirming the liberties of the people, her Petition of Rights, and from these the early settlers of this country could well understand the advantages of written documents embodying a statement of the fundamental rights of the people and expressing the limitations of power in the government which should be established over them. It was in the light of this history and of these achievements that our forefathers commenced making and writing our constitutional history.

The spirit of civil liberty, of personal rights, of self-government, of taxation only by the people themselves, of the responsibility of rulers to the people as the final depository of power, was firmly inwrought into the very being of those who crossed the Atlantic to plant new homes in the wilderness, and those rights and privileges they sought from the first to make sure for themselves and their posterity by embodying their doctrine in fundamental laws. The American colonists commenced writing their constitutions in the light of the English doctrine, irrevocably fixed by Magna Charta, and sanctioned by four centuries of national history and experience, that "We will cause nothing to be done by anyone, either by ourselves or any other person, by means of which any one of these concessions and liberties shall be revoked or diminished, and if any such thing may have been caused to be done, let it be held null and void, and we will never make use of it, by ourselves or by anyone else." This established doctrine of Magna Charta, embodied in principle though not in the same language in the early American constitutions, was finally stated, when our national Constitution was prepared, in a way that has made our rights as secure as did Magna Charta make secure the rights of Englishmen ; this declaration in our fundamental law is that this constitution, which declares and limits the powers of the government and secures the rights of the governed, shall be the supreme law of the land. There is no room here for tyrannical rule or arbitrary government.

The colonists before starting for America sought to secure charters, embodying these doctrines of liberty and self-government, under the royal hand and seal and acknowledged by him to be their fundamental right. In some instances these charters were almost all that could be desired, while in other cases they but partially stated the rights, or left an inference that they were subject to be modified or revoked by the granting power.

EFFECT OF RELIGIOUS THOUGHT ON THE CONSTITUTION

There can be no doubt that the constitutional history of America, as well as that of Europe in general, was largely influenced, and the course of its current controlled, by the Protestant Reformation. Its establishment of the doctrine of freedom of conscience and the right of private judgment had the effect of creating a spirit opposed to absolutism in State as well as Church, and forced on those in authority the adoption of liberal principles in government.

Nearly all the settlers who came to America had imbibed these principles. Some of them, it is true, in place of Roman absolutism had adopted an intolerance of their own, but it had no such controlling effect on the masses of the people as Romanism had exerted, and a large proportion of the colonists entertained the most liberal Christian views. Such persons would be satisfied with nothing less in government than freedom of thought and action.

EARLY CLAIMS FOR COLONIAL INDEPENDENCE

There was always a conflict of opinion between the English Government and the colonies as to the rights of the latter. Whether the colony was under, what was termed, a proprietary, a provincial, a royal, or a charter government, the claims of the colonists and their actual exercise of authority were always greater than their theoretical rights according to the interpretation placed on the grant or charter by the English Government. In the proprietary government sovereignty was supposed to reside in the King, but the proprietary was given that full measure of government and control that belonged to a feudatory lord of a county under the feudal system. The proprietary was, in effect, what would have been termed a count palatine of the old feudal government. In a royal government sovereignty and power of government were claimed to remain with the King. In a charter government those to whom the charter was granted were supposed to have about the same rights as belonged to members of any civil corporation. But in each of these forms of government the colonists claimed much more than the English Government conceded.

When the claim put forth by the British Government, that Parliament had unlimited authority to legislate for the colonies in all cases, was once definitely stated it was from the first vigorously denied and contested by the colonists. However, the nature of the colonial government, the situation of the colonists and their relation to the mother country, and the practice of governments under which colonies have been planted and maintained, seem to warrant a claim to some sort of home legislative authority. If such claim had been put forth in a more moderate form and a less objectionable way, probably it would not have met with strong resistance. The charters themselves, in some instances, at least, impliedly recognized the legislative authority of Parliament to some extent. But probably this never included the parliamentary right to tax the colonies.

Although the English lawyers generally did not concede it, and law writers denied it, the colonists always claimed that as British subjects they were entitled to all the legal protection of Englishmen, and that they brought with them to this country the common law of England, as modified by parliamentary enactments up to the time of their migration. This has always been the American doctrine. With the common law in full force the colonists generally claimed the right of independent legislation, subject to no interference or control by the crown or Parliament of Great Britain.

While a difference of opinion existed in England and America as to the authority of the parent government over the colonies, still no serious conflict arose till about the middle of the eighteenth century. But when England commenced to enforce her navigation laws, and more especially when she entered on the policy of internal taxation of the colonists by means of the stamp act, the old conflict of opinion arose and came to be more clearly defined, and the position of the colonists was more boldly and vigorously proclaimed and enforced. But even then there was not a unanimity of opinion either in England or America. In England probably the prevailing opinion was that Parliament had full power of legislation over the colonies in all matters, including taxation. But a very respectable number, headed by the elder Pitt, while claiming for Parliament legislative jurisdiction over the colonies in all matters of general concern, including navigation and commerce, conceded to the colonies the exclusive right of taxation, and denied to Parliament any authority to levy taxes on the colonists in any manner or for any purpose. But in America the prevailing opinion was that all legislative authority resided with the colonies, and they were under no obligation to submit to any act of Parliament interfering with their colonial affairs. However, even here a very large number of the leading colonists conceded to Parliament authority nearly as extensive as claimed for it by Pitt, but, with him, denied absolutely any right in Parliament to levy taxes on the colonies. If Pitt, instead of Grenville, had been prime minister, no stamp act would have been passed and, in all probability, it would have been many years before any serious conflict of authority would have arisen between the home and colonial governments. With as strong a sentiment as at that time prevailed in America in favor of parliamentary authority over trade no strong resistance would have been urged had parliamentary legislation been confined to that.

The basis on which Americans claimed exemption from parliamentary taxation, and so far as that claim extended, from general parliamentary legislation, was not solely nor principally because of their chartered rights; indeed, many refused to place it on that ground at all. But they claimed that the parliamentary right of legislation and taxation had always been limited to those who were represented in that legislative body ; that the colonists were not, and in the nature of things could not be, represented in Parliament; that their colonial legislatures had exercised, and by the mother country had been conceded to possess, full legislative powers. The colonists asserted that they were not bastards but sons of England, and therefore were entitled to all the rights of Englishmen; that to submit to the imposition of taxes by a body in which they were not represented was to concede themselves as unworthy the descent of freebom Englishmen. In the main, Pitt and his associates followed the line of argument which had been put forth and furnished them by the Americans.

After the restoration of the Stuarts there was an almost uninterrupted series of acts on the part of the parent government put forth with a view of bringing all the American colonies under the complete control of the crown and Parliament. Until about 1680 most of the colonies were undisturbed in the administration of justice through their own courts. But from that time the crown was constantly asserting its inherent right to hear and determine appeals from the colonial courts. This was firmly resisted in most of the colonies, and successfully so in a number of them, for many years. From about 1700 most of the colonies gave way to the royal will and appeals to the King in council were allowed in certain cases. By means of these appeals decisions were made, and constructions were given to their statutes, which greatly changed the fundamental laws of the colonies.

I need not further particularize, but, especially after the accession of Charles II down to the American Revolution, a constant contest was going on between the British and the colonial governments over a variety of questions, including disputes as to the regulation of commerce, the support of royal colonial officers by permanent and fixed salaries to be raised by the colonies, appeals from the colonial courts to the home government, the right of the colonists to the same judicial privileges as Englishmen at home, including the right of the writ of habeas corpus, and the claim of the home government to a right to legislate for the colonies in all matters. These contests, instead of drawing the parties nearer together, were constantly estranging the contestants, and making a reconciliation practically impossible.

These contests of which I have spoken extended, in a greater or less degree, to all the colonies, and the discussions respecting them were participated in by all the leading colonists, and affected the thought and action of the whole body of Americans. They not only had an influence in shaping the government of the time, but they so entered into the composition of American public sentiment that all political action thereafter taken was, in a great degree, controlled by it. The American conception of the rights of the people thus instilled into their very life-blood at last found permanent expression in the framing and adoption of the Constitution of the United States.

VIRGINIA .

When the First Colony of Virginia left England in the latter part of 1606 it was to found a colony in the control and management of which they had no voice whatever. Not even the London Company, which sent it out, could make for it any law or regulation without permission of the King. James I could not be quite absolute in the government of England, but his desire for absolute rule was to be given full sway in Virginia. Full legislative as well as executive authority remained with the King.

Two years after the settlement of Jamestown the London Company was granted a new charter which conferred upon the company the power which in the first had been reserved to the King. Executive and legislative authority was to be exercised by the council in London, which was elected by the shareholders.

In the third charter, granted two years later, in 1612, supreme power was granted directly to the whole company, and not to the council, as theretofore. When George Yeardley came over as governor, in 1619, he brought with him authority from the company to confer political rights on the colonists. Whereupon an assembly, composed of representative burgesses from each plantation in the colony, was called to meet in Jamestown in July, 1619. This was the first representative assembly convened in America. In July, 1621, the company granted the colony a written Constitution by which the people were secured in substantially all the rights of Englishmen at home, both in the administration of government and in the security of person and property. We can hardly overestimate the importance of this document as a precedent for constitutional government in the New World.

In 1624, by a judgment of the court of king's bench, in a proceeding in quo warranto, the liberal charter which King James had granted the London Company, and which he had in vain sought to induce the company to voluntarily surrender, was declared forfeited. His death soon after this event prevented the King from exercising any of those arbitrary powers which he probably had in view, and his son, Charles I, on ascending the throne, had so much trouble with affairs at home that he exercised less power abroad than he might have done under other circumstances. Notwithstanding this resumption of full royal authority, the rights and privileges of the colonists were not in any way interfered with. Their assembly continued to meet, and under the experience they were acquiring they grew more independent and outspoken, and put forth a series of legislative enactments that does credit alike to their intelligent grasp of the colony's needs and to the spirit of free men who were to be followed by an illustrious posterity.

When Parliament assumed the government of England and came to deal with the colony which had been adhering to the royal cause, it guaranteed full English liberty to the colonists whose business was permitted to continue under the control of their own assembly. But no action was taken on the colonists' request that no taxes nor customs should be levied, nor forts erected.

without their representatives' consent. Control over these matters had for some years been exercised by the assembly, had been by it claimed as a right, and had been acquiesced in by the royal government. During the protectorate of Cromwell suffrage was made universal to all who paid a poll-tax. The colonists were allowed to elect their executive officers as well as their legislators.

After the restoration of the Stuarts the popular party, which had been in control of the colonial government, was supplanted by the element possessing more of an aristocratic tendency. Suffrage was greatly curtailed and popular elections could hardly be said to prevail. The Anglo-Saxon tendency to personal liberty which allowed the child of a slave mother to take the condition of the free father was changed by statute, which adopted the harsh Roman rule that the condition of the offspring followed that of the mother, and thus placed the child of a slave mother in the ranks of bondmen.

In the colony generally the rule of primogeniture prevailed, although a different law of inheritance sprang up in certain counties. The Anglican Church was the religion of the state and was supported at public charge. There was no public provision for popular education. In 1661 Lord Berkeley, the royal governor, thanked God that Virginia had no free schools nor printing-presses, and he hoped she would not have for hundreds of years to come. A favored aristocracy was a natural product of the system of civilization developed in this colony.

Of course many changes in government, as well as in public sentiment on various questions, were made between the time of which I have spoken and the American Revolution. But nothing took place which materially modified the trend of constitutional history. What I have already stated in respect to the government of this colony will fairly show her important place in the development of constitutional government in this country.

MARYLAND

At the time when religious controversy ran so high in England Lord Baltimore, who had for years been deeply interested in the settlement of America, and who had himself planted a colony in Newfoundland, visited Virginia to see about selecting a more favorable site for his colony. His religious convictions would not allow him to take the oath of supremacy which the laws of England and the instructions to the Governor of Virginia required of the inhabitants of that colony ; hence there could be no peaceable settlement of his colony within the territory of Virginia. But the charter of the London Company had now been forfeited and the King claimed complete proprietorship of the New World, notwithstanding the land may have been embraced within the grant of an old charter. There was, therefore, no reason, from the King's standpoint, why he might not bestow on this worthy lord the right of establishing a colony in a more favorable clime.

Under date of June 20, 1632, the charter which had been intended for his father was given to the younger Lord Baltimore, making him and his heirs full proprietors of the province of Maryland. By the terms of the charter the King relinquished and renounced forever, for himself and successors, the right to impose any impost, custom, or tax upon the inhabitants of the province. Nor was the royal consent required to the validity of provincial legislation or the proprietor's appointments to office. The charter required the approbation of a majority of colonists, or their deputies, for the validity of legislation. Large powers were given the proprietor in the way of establishing, by ordinance of his own creation, aristocratic institutions, including at least some features of the feudal system. But the provision for independent and supreme legislation, and absolute control over taxation, by a colonial legislature, was the redeeming feature of this charter.