The evolution of the Constitution of the United States

Front matter

Qass.

Book.

cop/^

Preface

Histories of the Constitution usually describe the labors of its framers in the Convention of 1787 and the contests of political parties over the adoption of the instrument by the requisite number of States in the following year, together with such changes or developments as have taken place since that time. The works which have touched on its sources or origin have treated it as invented by the convention which framed it, or have sought in England or other European countries for forms of government which were like it or might have suggested its various provisions.

Having for a long time been convinced that the Constitution is neither an invention nor an imitation, but almost exclusively a native product of slow and gradual growth, I have in this book undertaken to trace back, through previous American documents in colonial times, every material clause of it These documents are very numerous, and consist of twenty-nine colonial charters and constitutions, seventeen Revolutionary constitutions, and twenty-three plans of union, — in all, sixty-nine different forms of government which were either in actual or in attempted operation in America during a period of about two hundred years, from 1584 to 1787. These constituted the school of thought, the experiments, and

Preface

the training which in the end produced the national government under which we now Hve.

The time of two hundred years was sufficiently long, and the sixty-nine different forms of government were certainly numerous and varied enough, to bring about the final result ; and they account for the final result in a more clear, complete, and satisfactory manner than any of the theories of sudden inspiration or imitation of England or Holland that have been broached.

In order to show the evolution in all its details, I have divided two of the chapters into sections. Each section traces back a clause of the Constitution through all the previous documents, with quotations from each document showing the gradual development, the experience that was acquired, or the experiments that were made. This has made necessary a great deal of small print, and sometimes rather long quotations from the old documents, which were very verbose. But the reader has it all before him, and can, in most instances, see at a glance the nature of the development without any laborious search through the sixty-nine documents. I have also tried to lessen his efforts, wherever I could, by comments and summaries.

Besides this detailed analysis, there are chapters giving a general view of the growth and discussing the supposed resemblances to European forms of government. The last chapter deals with Mr. Campbell's theory that part of the Constitution and many other American institutions were derived from Holland.

Philadelphia, February, 1897.

Appendix

Constitution of the United States 375

Documents in the Evolution from the Colonial Charters

1. Sir Walter Raleigh' s Charter, 1584.

2. Virginia Charter, 1606.

3. Virginia Charter, 1609.

4. Virginia Charter, 1611-12.

5. New England Charter, 1620.

6. Grant of New Hampshire, 1629.

7. Massachusetts Charter, 1629.

8. Maryland Charter, 1632.

9. Grant of New Hampshire, 1635.

10. Fundamental Orders of Connecticut, 1 638.

11. Grant of Maine, 1639.

12. Connecticut Charter, 1662.

13. Charter of Carolina, 1663.

14. Rhode Island Charter, 1663.

15. Grant to the Duke of York, 1664.

16. Concessions of East Jersey, 1665.

17. Charter of Carolina, 1665.

18. Locke's Carolina Constitution, 1669.

19. Grant to the Duke of York, 1674.

20. Concessions of West Jersey, 1677.

21. Commission for New Hampshire, 1680.

22. Pennsylvania Charter, 1681.

23. Pennsylvania Frame of April 2, 1683.

24. Pennsylvania Frame, 1683.

25. Massachusetts Charter, 1691.

26. Pennsylvania Frame, 1696.

27. Pennsylvania Charter of Privileges, 1701.

28. Explanatory Massachusetts Charter, 1726.

29. Georgia Charter, 1732.

Documents in the Evolution

30. New Hampshire Constitution, begun December 21, 1775 ; finished January 5, 1776.

31. South Carohna Constitution, adopted March 26, 1776.

32. Virginia Constitution, begun May 6, 1776 ; adopted June 29, 1776.

33. New Jersey Constitution, begun May 26, 1776 ; adopted July 3, 1776.

34. Delaware Constitution, begun August 27, 1776; adopted September 21, 1776.

35. Pennsylvania Constitution, begun July 15, 1776 ; adopted September 28, 1776.

36. Maryland Constitution, begun August 14, 1776; finished November 11, 1776.

37. North CaroHna Constitution, begun November 12, 1776; finished December 18, 1776.

38. Georgia Constitution, begun October i, 1776 ; finished February 5, 1777.

39. New York Constitution, begun July 10, 1776; finished April 20, 1777.

40. Vermont Constitution, begun July 2, 1777 ; finished July

8, 1777.

41. Rejected Massachusetts Constitution, 1778.

42. South Carolina Constitution, passed as an act of assembly March 19, 1778 ; went into effect November, 1778.

43. Rejected New Hampshire Constitution, 1778.

44. Massachusetts Constitution, begun September i, 1779 ; finished March 2, 1780.

45. New Hampshire Constitution, begun June 12, 1781 ; finished October 31, 1783; adopted June 2, 1784.

46. Vermont Constitution, 1 786.

The Constitution, 1787.

Documents in the Evolution of Federalism

1. New England Confederation of 1643.

2. Commission of Council for Foreign Plantations, 1660.

3. William Penn's Plan of Union, 1696.

4. Report of Board of Trade on union of New York with other colonies, 1696.

5. D'Avenant's Plan of 1698.

6. A Virginian' s Plan, in ' ' An Essay on the Government of the English Plantations on the Continent of America," 1701.

7. Livingston's Plan, 1701.

8. Earl of Stair's Proposals, 1721.

9. Plan of the Lords of Trade, 1721.

10. Daniel Coxe's Plan, in "A Description of the English Province of Carolina," 1722.

11. Kennedy's Plan, 1751.

12. Franklin's Plan, 1754.

13. Richard Peters' s Plan, 1754.

14. Hutchinson's Plan, 1754.

15. Plan of the Lords of Trade, 1754.

16. Dr. Samuel Johnson's Plan, 1760.

17. Galloway's Plan, 1774.

18. Franklin's Articles of Confederation, 1775.

19. The Articles of Confederation, 1778.

20. Drayton's Articles of Confederation, 1778.

21. Webster's Sketches of American Policy, 1785.

22. Randolph's Plan, 1787.

23. Pinckney's Plan, 1787.

The Constitution, 1787.

The Evolution of the Constitution of the United States

Chapter I. Confused Ideas As To The Origin Of The Constitu- Tion

To set men thinking and incite them to conduct investigations of their own is often more important than to persuade and convince them. No words of Mr. Gladstone have been so much considered by the American people, and none have aroused them to so much research, as those in which he said that *'as the British Constitution is the most subtle organism which has proceeded from progressive history, so the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man."

At first glance there seems to be a compliment in the striking, clear-cut language of the great English statesman, and if the phrase had been applied to some nations — the French, for example — they would probably continue to think it complimentary. But along with the first impression of a compliment the Anglo-Saxon instinct of Americans received an impression which it

II resented. Our people were at first pleased, but the next moment they were irritated at the thought that their government had been made off-hand.

They have the reputation of being smart and quick, — smarter and quicker than their cousins the British, — and they rather like to be told so. But when you tell them that they were smart and quick in creating a political institution you touch another and far deeper feeling. You cut them off from their past ; and veneration for their past, even their far-distant past, is a passion which, though often secretly nourished, fills a large part of their lives. And so it has come to pass that, of all the sentences the Liberal leader of England ever wrote, there is none which Americans have been so anxious to refute as the one in which he doubtless thought he was saying what would be most surely acceptable to them.

Soon after his assertion became generally known, dissent from it began to appear, here and there, in addresses and newspaper and magazine articles, and now there are whole books on the subject, all laboring to show that the Constitution was not " struck off at a given time," but that its source and lines of development stretch far back into the past.

Unfortunately, these learned gentlemen who trace the sources of the Constitution do not agree with one another. In fact, there is a most extraordinary and even ridiculous contradiction in the sources they assign. Mr. Bryce, in his great work, "The American Commonwealth," finds the sources in the British government of King, Lords, and Commons, and he is followed by

Taylor, Stevens, and others, with variations of the same general opinion ; while Foster, in his recent work on the Constitution, seems somewhat inclined to go back to Mr. Gladstone's view. But Mr. Campbell, in his "Puritan in Holland, England, and America," denies all English sources, and gives our institutions an origin in Holland.

When we look further into the general subject of the sources of American institutions, municipal as well as constitutional, we find the same tendency to assign queer foreign origins. The New England township system, according to some learned people, is of German origin. The New England town, they say, especially in colonial times, with its common land and self-government, almost exactly resembled the old Teutonic village.

Between the occurrence of these two resemblances centuries of time elapsed when such towns were unknown to the race and forgotten by it. But a few centuries are a mere trifle to a man who has detected one of these mystical resemblances. By a little skilful language, a ** doubtless" or a " perhaps" or an ingenious hypothesis, he will easily jump aeons of time and oceans of space. Only let him find in Mexico or Yucatan a building or some pottery with an outline like something in Persia, and five thousand years and three thousand miles of ocean are nothing. He will put volcanoes under the water and raise islands, and then an ancient continent, until he has made history to suit him.

Every generation seems to have its crop of these extraordinary suggestions and hypotheses, which their advocates soon extend beyond their proper sphere of mere suggestions and insist that they are certainties. For many years after the Revolution it was supposed that some of the American Indians were descended from a lost tribe of Welshmen who came to this continent under a leader called Madoc. Remains of burial mounds and ancient customs were found, which the learned insisted were very like remains in Wales, and they heaped up the suggestions until they had what they thought was proof Fortunately, the craze had passed away when the tribe of Modoc Indians became prominent soon after the Civil War, or we might have had it continued indefinitely.

During the same period many people believed that all our Indians were descendants of the lost tribes of Israel. They found many resemblances, and the one which impressed them most was that some of the Indians had cities of refuge like the Israelites. Cooper satirized these people in his novel " Oak Openings," in which there is a character who proves the connection by the passage in the Psalms, '' God shall wound the head of his enemies, and the hairy scalp of such a one as goeth on still in his wickedness." But these ancient fancies are hardly any worse than Mr. Campbell's notion that our American institutions, including the New England town system, are derived from Holland.

I admit that there is great fascination in these speculations, and I admit that there may possibly be something more than fascination in the theory of the recurrence of ideas and institutions at long intervals in the history of a race. That passage in Du Chaillu's '' Viking Age" in which he asserts that the Norsemen, the ancestors of the English and Americans, had a federal government like that of the United States, is certainly most interesting and impressive :

" Every Herad was independent of the Fylki in its local affairs, and every Fylki was independent one from the other, each having self-government. When the affairs of the country required the presence of all the people, then the boendr of the Herads and Fylki met together at a general Thing, called Allsherjar Thing (Thing of all the hosts), and all had to abide by the decision taken . . . The closest approach to this ancient form of government is that of the United States. ' '

But before we resort to these far-fetched and romantic speculations we should exhaust the nearer and more accurate method, and this is what the writers on the sources of the American Constitution have failed to do. Taking the Constitution as it was framed in 1787, they immediately look for something in Europe from which they assume it must have been copied, instead of tracing its origin backward from itself through the two hundred years of the colonial period.

If T find on American soil the footprints of a man, and wish to discover whence he came, I surely ought not to assume at once that he is a foreigner and take the next steamer for England or Holland to see if I can find footprints over there that are like his. It would be better, it seems to me, to start backward on his trail from the very spot where I find it ; for it may be that he is a native, and I may be able to follow his tracks for hundreds of miles in this country, and, when I come to his house, find that he and his ancestors have been living there for many generations. In any event, I should follow back his track until it ends on the sea-shore, and after that search for him in other countries.

This is, I believe, the only sound, legitimate, and scientific way to trace the origin of a pubHc document or institution. We must go back, step by step, in the direct line of ancestry, and keep in that line until it ends. There must be no jumping, no wanderings aside, and no searching for vague resemblances in the world at large.

If the writers on the sources of the Constitution had followed this plan there would, I think, be less disagreement among them, or at least not the extraordinary contradiction which we now find. The contradiction follows naturally enough from their method ; for as soon as they leave the direct line of growth and begin to search for resemblances everywhere they will find plenty of them. Human nature is in a general way much the same all the world over, and human beings have been laboring for many centuries and encountering the same problems and conditions in one country as in another. Within recent years vast quantities of historical details of almost every country have been published, and a man who has a fancy for some particular nation can easily frame a specious argument to show how other nations have apparently copied from it.

There have been instances of direct and literal imitation ; but they are comparatively rare, and very rare among the Anglo-Saxon race. The instances where one nation has been influenced in a general way by what it knows of the workings of institutions in another

i6 nation are more numerous ; but in these instances there is not what would properly be called an imitation or a taking. Very often the institutions of the foreign country are considered as an example of what should not be done. Some of the provisions of our own Constitution were influenced in this w^ay by what were supposed to be evils in the English system.

In other cases a nation, having to solve a problem which has troubled it for many years, works out in time what seems to be a solution, and is the more convinced that it will prove successful because something like it has been adopted by another country. The foreign institutions are used in these instances argumentatively, and are not imitated in the true sense of the word, because the nation has an experience of its own with which it is working, and it uses the foreign institution merely to reinforce its own ideas.

For example, in colonial times our people were very ' familiar with the veto power in the colonial governors, ' and also in the king. The governors could, in many instances, veto the laws of the assemblies immediately on their passage, and the same laws had to be submitted to the king, who had a certain number of years, usually about five, to examine them, and at the end of that time, if he disapproved, he could annul them. These vetoes of governors and king were absolute. They killed the laws, and there was no arrangement for passing the laws over their veto by a two-thirds vote. But the people suffered so much inconvenience from these absolute vetoes that when they came to make their own State constitutions in the Revolution they usually gave their

2 17

(vC.

governors no veto power at all, until at last New York hit upon the plan of a modified veto, which could be overcome by a two-thirds vote of the legislature ; and when the National Constitution was framed this same modified veto was given to the President. It is certainly not an imitation of the veto power of the English king, for it was developed solely out of American experience of the evils of the king's absolute veto.

The United States Senate is, as we shall see, a gradual development from the Governor's Council of colonial times, which was first a mere advisory council of the governor, afterwards a part of the legislature sitting with the assembly, then a second house of legislature sitting apart from the assembly, as an upper house ; sometimes appointed by the governor, sometimes elected by the people, until it gradually became an elective body, with the idea that its members represented certain districts of land, usually the counties. It had developed thus far when the National Constitution was framed, and it was adopted in that instrument so as to equalize the States and prevent the larger ones from oppressing the smaller ones. This was accomplished by giving each State two Senators, so that large and small were alike. The language in the Constitution describing the functions of the Senate was framed principally by John Dickinson, who at that time represented Delaware, — one of the smaller States of the Union, — which had suffered in colonial times from too much control by Pennsylvania.

The Senate as it exists to-day is therefore primarily the result of our own experience. But some writers insist on seeing in it an imitation of the British House

i8 of Lords, and Mr. Campbell, finding that the States- General of the Netherland Republic was composed of representatives of states and that each state had onlyone vote, and that the framers of our Constitution were familiar with Netherland institutions, jumps to the conclusion that the United States Senate was a Dutch importation.

If it really had been an imitation from the Dutch, there would be some evidence of it in the debates of the Constitutional Convention. The Dutch resemblance would have been urged by some as a reason in its favor and by others as a reason against it. Afterwards, when the Constitution was before the people for adoption and closely discussed and criticised in numerous pamphlets and newspapers, the Dutch imitation, if there had been one, would have been surely referred to either by friends or by enemies. But Mr. Campbell cites no evidence of this sort, and, as a matter of fact, there is none.

The sources of our Constitution are to be found in the colonial period of about two hundred years which preceded the framing of the Constitution, in 1787. Literally, the time began with Sir Walter Raleigh's charter of 1 584, which makes a period of two hundred and three years. Those two hundred years were ample for formation and growth, and they cannot be safely skipped. But writers have thus far dismissed them, or summarized them in a sentence or two, and rushed off to Europe to look for foreign sources.

It must be confessed that the supposed foreign sources make easier and more interesting work. The material is all at hand, has been well analyzed and arranged by eminent scholars, and all educated people are more or less familiar with it. But our colonial history is an unknown land of scattered material, — long, wordy documents difficult to read, — and has been so neglected, and the little research that has been made in it so stupidly done, that most people instinctively avoid it. There is supposed to be little or nothing in it, and a habit has grown up of believing that all of value or interest in our history began with the Revolution.

But that despised colonial period contains all our beginnings ; and not only our beginnings, but a large part of our maturity ; for at the time the Constitution was framed, in 1787, our people had had a vast experience in constitution-making, — greater and more varied, I am inclined to think, than any other people of the world. They had been living under charters from the Crown, — constitutions of their own making, — and some of them without either charters or constitutions, for nearly two centuries, and during the Revolution they had nearly all made new constitutions, under which they had been living for ten or more years.

In fact, our experience of constitution-making and constitution-working previous to 1787 covered a much longer period than our experience since that year. Our modern experience has dealt with larger populations and vaster problems, but it covers a period of less than one hundred and ten years, while the previous experience was of two hundred years, and was more varied, experimental, and elementary.

When Massachusetts sent her delegates, in the year 1787, to frame the National Constitution, she had had over a hundred and fifty years' experience of constitution-tinkering. During that time she had Hved under two charters, a constitution, and an interregnum^ when she had neither charter nor constitution and was under the direct rule of the Crown. Her first charter was so hberal that she had enjoyed for fifty years what was in effect independence. She elected her own governors, coined her own money, and was not obliged to send her laws to England for approval. Her second charter was just the reverse, and gave her a taste of something very near to despotism. During the Revolution she made for herself a constitution which was rejected by her people, but before the Revolution closed she made another, which was accepted. She had had a double experience of constitution-making during the seven years of the Revolution, and, taken all in all, a very severe and long preparation for her part in the national document of 1787.

Virginia had had very much the same experience and training, and for a longer period of time. Pennsylvania had been living for more than ten years under a constitution which she had made for herself in 1776, — a most bungling instrument, with which the majority of her people were heartily disgusted. Previous to that she had been living under an excellent constitution of her own making for seventy-five years, before which she had lived under several constitutions, or frames, as they were then usually called, none of them successful.

Other colonies had had greater or less experience, and it was certainly all very varied. When we consider that the delegates came to the Convention of 1787 with all this experience in their minds, each with the experience of his own colony and what he had heard of the experience of the other colonies, we begin to feel the truth of my main proposition, — that it is to the colonial period we must look for the immediate and most evident sources of the National Constitution, and that the National Constitution when framed, in 1787, instead of being a contrast to the British Constitution and "struck off at a given time," was, even when judged as a purely American production, more than a hundred years old.

The colonial sources of the Constitution are, first of all, the charters of government, which were framed not by the colonists themselves, but for them by the officers and ministers of the British Crown. It is easy enough to give the details of these. We have them all in Poore's admirable collection. They are very trying to read, because, like other documents of that time, each of them, though many pages long, is supposed to be one sentence from beginning to end. The clerks who draughted them were paid by the line, and their ingeniously involved language almost compels one to believe the assertion in Kid's ''Social Evolution" that the modern brain is inferior to the ancient But their immense verbosity conceals usually only a few very simple arrangements of government. . They were the foundation and beginning of our constitutional experience.

The second source of our experience is comprised in the constitutions, or frames as they were often called, which were made by the colonists themselves, with little or no dictation from the Crown. Some of these, as in Pennsylvania, rested on an authority given by the Crown to the people to make such a government as they could agree upon with their feudal proprietor. The first constitution of Connecticut, however, was made by the people of their own accord, without any outside influence. These native constitutions might naturally be expected to differ very radically from the royal charters. But in matters of government and political forms there was very little difference, and both charters and constitutions seem to have been influenced by the same process of evolution.

The third class of sources is the actual working and experience under these charters and constitutions, and under the governments which sprang up or were established by the Crown when a colony was without either charter or constitution. In this class we find the same evolution at work, and the practical experience under these governments reinforced the ideas developed by the written documents.

The fourth class of sources comprises what I shall call the Revolutionary constitutions, or constitutions of the year 1776. I call them constitutions of 1776 because most of them were made in that year. They were all the result of a resolution of the Continental Congress passed in 1775, calling on each of the commonwealths, that were then still colonies, to abolish their charters, constitutions, or whatever sort of colonial government they had, and adopt new constitutions suited to the movement for independence.

It was a resolution which at the time it was passed was considered of great importance. The people were wavering and hesitating to join the movement for independence because they retained a lingering sentiment for the old order of things, the order under which they had lived and prospered for more than a hundred years, and which had given them pretty much all the experience they possessed of civil rights and government. This sentiment was generally believed to be wrapped up in the old charters and colonial constitutions, and if they could be broken the sentiment, it was said, would lose more than half its strength.

It was certainly in many respects a wise resolution from the point of view of those who passed it. It has not been much noticed by writers on the sources of the Constitution, but it was the indirect source of more constitutional experience to the American people than anything else that can be named. It was obeyed by all the colonies except Connecticut and Rhode Island, whose charter governments were so liberal and gave so much essential independence that they were already substantially American. Connecticut continued to live under her old royal charter down to the year i8i8, and Rhode Island down to the year 1842.

Under the inspiration of this resolution the majority of the commonwealths that eleven years afterward made the National Constitution rushed into an active experience in constitution-making in the years 1776 and 1777 ; and they had an opportunity to test the constitutions thus made for ten years before they were called upon to frame the national document.

Of the seventeen constitutions of 1776, eight were put in operation in the year 1776, three in 1777, and one in 1778. Massachusetts framed a constitution in

1778 which was rejected by her people, and another in

1779 which was adopted March 2, 1780. New Hampshire, which had adopted a constitution in 1776, framed another in 1779 which was rejected, and another in 1784 which was adopted. But even in the instances of Massachusetts and New Hampshire, where the experience was prolonged and difficult, the constitutions had been in actual working for several years before the assembling of the National Convention of 1787. Vermont adopted a new constitution in 1786, the year before the assembling of the Convention, but it differed very slightly from her constitution of 1777, which was a copy of the Pennsylvania constitution of 1776.

When we read all these constitutions of 1776 together, in the light of our present knowledge, we see at once that they bear a most curious but immature resemblance to the National Constitution. They are full of blunders, untried experiments, well-tried experiments, individual suggestions good and bad, old colonial traditions and experience, strange remnants of aristocratic feeling, and all the natural characteristics of apprentices free for the first time to slash about at will with their master's tools and materials. And the most striking part of all is that when we read them in chronological order we find them developing step by step, and that those which took longest in making, like the constitution of Massachusetts, most nearly resemble the National Constitution.