Preface
In preparing this collection of historical material for publication, I have had in mind chiefly the needs of the average undergraduate. Believing that the so-called "case system" has a distinct disciplinary value and may be applied profitably, within certain limits, to the study of constitutional history, I have tested for some years in my classes a variety of documents drawn from many sources. The matter contained within the covers of this volume may be viewed as the survival of the fittest. So far as possible, a unity and coherence have been given to the selections by careful grouping and by brief introductory comments.
The phrase " constitutional history" has been used rather broadly to mean not only the development of Federal and State Constitutions, but also the history of governmental processes. " Readings in the history of American polity " would have been a not inappropriate title for the book.
Formal documentary matter — such as legislative bills, acts, and general statutes — has been omitted. Selected statutes are now accessible in several collections, notably in the excellent series edited by Professor William MacDonald. In conclusion, I will say that wherever a choice has been possible, I have selected material with an eye to literary form as well as to historical content.
A. J.
Yale University June, 1 91 2
Chapter I. Colonial Charters and Establishments
x. The Charter of Connecticut i
Connecticut Colonial Records, n, 3-1 1 passim.
2. Defence of Charter Governments 4
Dummer, Defence of the New-England Charters (1721), 35-39.
3. The Charter of Maryland 6
Thomas Bacon, Laws of Maryland (1765), passim.
Chapter II. The Polity of a Royal Province
4. Report of Governor Tryon on New York 10
O'Callaghan, Documentary History of the State of New York, 1, 752- 56.
5. Report of Governor Gooch on Virginia 14
"Queries from ye Lds of Trade to Sr Wm. Gooch Govr of Virginia & his Answers Abridged," in Virginia Magazine of History, in, 114-17.
Chapter III. The Powers of a Royal Governor
6. Commission of Francis Bernard as Governor of New Jersey . 18
Ricord and Nelson, Documents relating to the Colonial History of the State of New Jersey, ix, 23-34 passim.
7. Instructions to Governor Bernard of New Jersey ... 22
Ricord and Nelson, Documents relating to the Colonial History of the State of New Jersey, ix, 40-77 passim.
Chapter IV. Royal Governor and Representative Assembly
8. The Points at Issue between the Colonies and the Crown . 26
Pownall, Administration of the Colonies (1765), 39-47 passim.
9. "Every Proprietary Governor has Two Masters" . . .30
Franklin, An Historical Review of the Constitution and Government of Pennsylvania, 72-73.
10. The Power of the Purse 31
Pownall, Administration of the Colonies (1765), 50-53.
Chapter V. The Union or the American Colonies
11. Credentials of the Massachusetts Delegates to the First
Continental Congress 34
Journals of the Continental Congress (Ford ed.), 1, 15-16.
vi CONTENTS
12. The Association 35
Journals of the Continental Congress (Ford ed.), I, 75~8o.
13. Resolutions of the Second Continental Congeess ... 40
Journals of the Continental Congress (Ford ed.), n, 79, 83-84, 89, 91.
Chapter VI. Political Doctrines or the Revolutionary Era
14. John Locke on the Dissolution of Governments ... 43
Locke, Two Treatises of Government (Morley's Universal Library), 222, 225.
15. The Revolution in New Hampshire 44
Thorpe, Federal and State Constitutions, iv, 2451-53.
16. The Declaration of Independence . 46
17. Massachusetts Declaration of Rights 48
Thorpe, Federal and State Constitutions, ill, 1888-93.
Chapter VII. Principles oe Representative Government
18. Distinction between Democracies and Republics . 55
19. The Nature of Representation 56
Federalist (Ford ed.), Nos. 35 and 36 passim.
20. Doctrine of the Separation of Powers . . . . . .59
21. Checks and Balances 61
Chapter VIII. State Constitutions of the Revolutionary Era
22. Transition from Colony to Commonwealth in Connecticut . 63
Poore, Charters and Constitutions, 1, 257.
23. Constitution of New Jersey, 1776 64
Thorpe, Federal and State Constitutions, v, 2594-98.
24. Constitution of Virginia, 1776 . 68
Thorpe, Federal and State Constitutions, vii, 3815-19.
Chapter IX. The First Federal Constitution
25. The Articles of Confederation 74
Chapter X. Defects of the Confederation
26. Dependence of the Confederation on the State Governments . 84
27. Specific Defects of the Confederation 85
CONTENTS vii
Chapter XI. Origin of the Federal Convention
28. Antecedents of the Annapolis Convention .... 93
James Madison, Preface to Debates in the Convention of 1787, in Farrand's Records of the Federal Convention, m, 543-45.
29. Report of the Annapolis Convention 96
Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution (1866), I, 11 7-18.
30. Call for the Constitutional Convention 98
Elliot, Debates, 1, 120.
31. Difficulties encountered by the Convention .... 99
Chapter XII. The Constitutional Convention of 1787
32. Opening Session of the Convention 102
Journal, in Farrand's Records of the Federal Convention, 1, 1-2.
2,2,. The Randolph Resolutions 104
Farrand, Records of the Federal Convention, 1, 20-22
34. The Paterson Resolutions 107
Farrand, Records of the Federal Convention, 1, 242-45.
35. The Great Compromise no
Farrand, Records of the Federal Convention, 1, 522-23.
Chapter XIII. The Constitution of the United States
36. The Constitution as adopted . . 112
Chapter XIV. The Ratification of the Constitution
37. Transmission of the New Constitution to Congress . . . 126
Elliot, Debates, v, 541.
38. Ratification of the Constitution by the State of Georgia . 127
Elliot, Debates, 1, 323-24.
39. The Constitution — National or Federal? 128
Chapter XV. The First Amendments to the Constitution
40. A Proposal to amend the New Constitution 135
41. Resolution of Congress for the Amendment of the Constitu-
tion 138
Elliot, Debates, 1, 338.
42. The First Ten Amendments 138
43. Chisholm v. Georgia 140
2 Dallas, 419.
44. The Eleventh Amendment 142 viii CONTENTS
Chapter XVI. The Government oe Federal Territories
45. The Ordinance of 1787 for the Northwest Territory . . 143
Chapter XVII. President and Congress
46. The Inauguration of President Washington 151
Maclay, Journal of William Maclay, 7-9.
47. The President's Speech and the Address of the House . .154
48. Origin of the First Veto Message 157
Writings of Thomas Jefferson (Ford ed.), 1, 192.
49. The Veto Message in the House 157
50. President Jefferson's Innovation 159
Richardson, Messages and Papers of the Presidents, 1, 325.
Chapter XVIII. The Senate as an Executive Council
51. Considerations on the Time, Place, and Manner of Consulta-
tions 160
Writings of George Washington (Ford ed.), xi, 418-19.
52. How the President shall be received in the Senate . . 161
Writings of George Washington (Ford ed.), xi, 419 note.
53. President and Senate in Executive Session . . . . .162
Maclay, Journal of William Maclay, 123-33 passim.
Chapter XIX. The Appointing and Removing Power oe the President
54. Debate on the Establishment of a Secretaryship of Foreign
Affairs 168
Chapter XX. Congress and the Treasury Department
55. Debate on the Establishment of a Secretaryship of Treas-
56. Power of the House over Heads of Departments . . . 184
Writings of Jefferson (Ford ed.), 1, 189-90.
57. Reports of the Secretary of Treasury 186
Henry Adams, Writings of Albert Gallatin, 1, 66-67.
Chapter XXI. The Whiskey Insurrection
58. Proclamation of August 7, 1794 188
Richardson, Messages and Papers of the Presidents, 1, 158-60.
CONTENTS
IX
59. Proclamation of September 25, 1794 ...—-... 191
Richardson, op. cil., 1, 161-62.
60. Instructions to Governor Lee 193
Brackenridge, History of the Western Insurrection, 283-85.
Chapter XXV. The Federal Compact and the Doctrine of Strict Construction
68. Jefferson on the Constitutionality of a National Bank . 225
Writings of Jefferson (Ford ed.), v, 285-87.
69. Kentucky Resolutions of 1798 228
Shaler, Kentucky, in the American Commonwealths Series, 409-16.
70. Kentucky Resolutions of 1799 235
Elliot, Debates, iv, 570-72.
Chapter XXVI. The Power to acquire Territory and to govern Acquired Territory
71. Jefferson on the Purchase of Louisiana 237
Writings of Jejferson (Washington ed.), iv, 500-01.
72. Senator Taylor on the Louisiana Treaty 237
73. The American Insurance Company v. Canter . „^ . . .241
1 Peters, 511.
x CONTENTS
74. Power of Congress over Acquired Territory . . . . 243
75. Sere et al. v. Pitot et al 244
6 Cranch, 332.
76. New Orleans v. Winter et al 245
Chapter XXVII. The Power op the Federal Judiciary to declare Acts of Congress Void
77. Marbury v. Madison 246
1 Cranch, 137.
78. Jefferson on the Usurpation of the Federal Judiciary . .252
Writings of Jefferson (Washington ed.), vii, 134-35.
Chapter XXVIII. Pennsylvania and the Federal Judiciary
79. United States v. Judge Peters 254
5 Cranch, 135.
80. Resolutions of the Legislature of Pennsylvania . . . 260
Annals of Congress, 11 Cong., 2 Sess., App., 2253-69 passim.
Chapter XXIX. Nullification in New England
81. Secretary of War to the Governor of Connecticut . . 263,
American Register (1809), 177-78.
82. The Governor of Connecticut to the Secretary of War . 264
American Register (1809), 178-79.
83. Resolutions of the General Assembly of Connecticut . .266
American Register (1809), 180-81.
84. The Governor of Massachusetts to the Secretary of War . 268
Senate Documents, 13 Cong., 3 Sess., Report of the Committee on Military Affairs, 34-48.
85. Opinion of the Judges of the Supreme Court of Massachusetts 269
Senate Documents, 13 Cong., 3 Sess., Report of the' Committee on Military Affairs, 38-42.
86. Martin v. Mott 271
Chapter XXXIV. Nullification in Georgia
94. Georgia and the Lands of the Creeks and Cherokees . .308
Acts of Georgia (1827), 248.
95. Legislature of Georgia on the Case of George Tassels . . 309
Acts of Georgia (1830), 282.
96. The Cherokee Nation v. The State of Georgia . . . .310
5 Peters, 1.
97. Worcester v. The State of Georgia . . , . . . .312
6 Peters, 515.
Chapter XXX V. The Doctrine of Nullification
98. The South Carolina Exposition 317
Works of John C. Calhoun (Cralle ed.), vi, 36-51 passim.
99. Report for a Committee of the South Carolina Legislature 322
Works of Calhoun (Cralle ed.), vi, 111-12.
100. The Fort Hill Letter on State Interposition . . . .323
Works of Calhoun (Cralle ed.), vi, 147-69 passim.
Chapter XXX VI. Nullification in South Carolina
101. South Carolina Ordinance of Nullification 326
Senate Documents, No. 30, 22 Cong., 2 Sess., 36-38.
102. President Jackson's Proclamation to the People of South
Carolina 329
Richardson, Messages and Papers of the Presidents, n, 641-52 passim.
Chapter XXXVII. The Nature of the Union
103. The Federal Compact a Binding Obligation 335
Richardson, Messages and Papers of the Presidents, xi, 648-50 passim.
xii CONTENTS
104. Webster's Reply to Hayne of South Carolina . . , ..337
Works of Daniel Webster (1851), in, 270-342 passim.
Chapter XXXVIII. Federal Control oe State Governments
105. President Tyler to the Governor of Rhode Island . . 344
Broadside in Yale University Library.
106. Memorial of the Democratic Members of the Legislature of
Rhode Island 345
House Reports, No. 546. 28 Cong., 1 Sess.
107. Luther v. Borden 348
7 Howard, 1.
Part Six. The New Democracy
Chapter XXXIX. The Basis of the New Democracy
108. Social Conditions and their Political Consequences . . 353
De Tocqueville, Democracy in America (12th ed.), 1, 63-67 passim.
109. Sovereignty of the People 355
De Tocqueville, op. cit., 1, 69-72 passim.
no. Chancellor Kent on Universal Suffrage . . . . . . 356
New York Convention of 182 1, Reports of the Proceedings and Debates, 219-22 passim.
in. Property not the True Basis of Representation . . . 360 New York Convention of 182 1, Reports of the Proceedings and Debates, 241-44 passim.
Chapter XL. Constitutional Changes in the States
112. Veto Power of the Governor ......... 363
New York Convention of 1821, Reports of the Proceedings and Debates, 52-53.
113. The Governor as "the Man of the People" . • . . . . 365
New York Convention of 182 1, Reports of the Proceedings and Debates, 60-61.
114. Political Power of the Judiciary 366
De Tocqueville, Democracy in America (12th ed.), 1, 125-30.
115. Popular Election of the Judiciary . . . . . . .367
Debates and Proceedings of the Maryland Reform Convention (185 1), 11, 461-64 passim.
Chapter XLI. President and Congress: the Veto Power
116. President Jackson's Bank Veto 370
Richardson, Messages and Papers of the Presidents, 11, 576-91 passim.
117. Henry Clay on the Veto Power 375
Mallory, Life and Speeches of Henry Clay, 11, 519-28 passim.
118. President Polk on the Exercise of the Veto Power . .378
Richardson, Messages and Papers of the Presidents, iv, 662-65 passim.
CONTENTS xiii
Chapter XLII. The President as the Direct Representative of the People
119. President Jackson's Paper read to the Cabinet .... 380
Niles's Register, xlv, 73-77 passim.
120. President Jackson's "Protest" 384
Richardson, Messages and Papers of the Presidents, ill, 69-93.
121. Senator Webster on the "Protest" 389
Works of Webster (1851), iv, 136-45 passim.
Chapter XLIII. Presidential Initiative in determining Foreign Policy
122. President Polk's War Message 393
Richardson, Messages and Papers of the Presidents, IV, 437-43 passim.
123. A Whig View of the Origin of the War 397
Cleveland, Alexander H. Stephens, 304-16 passim.
124. President Polk to Congress 399
Richardson, Messages and Papers of the Presidents, iv, 536-38.
125. President Polk to the House of Representatives . . . 402
Richardson, Messages and Papers of the Presidents, iv, 594-96 passim.
126. President Polk to Congress 404
Richardson, Messages and Papers of the Presidents, iv, 638.
Part Seven. Slavery and the Constitution
Chapter XLIV. Slavery in the Territories
127. The Wilmot Proviso 405
Congressional Globe, August 8, 1846.
128. The Rhett-Calhotjn Doctrine 406
Congressional Globe, 29 Cong., 2 Sess., App., 244-46 passim.
129. The Law of the Acquired Territories 408
Congressional Globe, 30 Cong., 1 Sess., App., 1104-06 passim.
130. "Squatter Sovereignty" 411
Niles's Register, lxxiii, 293-94.
131. The Territorial Acts of 1850 for Utah and New Mexico . 414
Report of the Committee on Territories, Senate Reports, No. 15, 33 Cong., 1 Sess., January 4, 1854.
Chapter XLV. The Rendition of Fugitive Slaves
132. Prigg v. Pennsylvania 416
133. Report of the Legislature of Virginia, 1849 4 21
Acts of Virginia, 1849-50, 240-54 passim.
134. Opinion of the Attorney-General on the Fugitive Slave Law
Executive Documents, 31 Cong., 2 Sess., 2099-2102 passim.
xiv CONTENTS
Chapter XL VI. The Doctrine oe Popular Sovereignty
T35. Report of the Senate Committee on Territories, 1854 . . 426 Senate Reports, No. 15, 33 Cong., 1 Sess., January 4, 1854.
136. Senator Everett on the Principle of the Legislation of 1850 430
Congressional Globe, 2>2> Cong., 1 Sess., App., 160-62 passim.
137. Senator Douglas on the Principle of Popular Sovereignty . 433
Congressional Globe, S3 Cong., 1 Sess., App., 326-37 passim.
Chapter XL VII. Dred Scott v. Sandeord
138. Dred Scott, Plaintiff in Error, v. John F. A. Sandford . . 436
Chapter XL VIII. Popular Sovereignty and the Dred Scott
Decision
139. The Freeport Doctrine 446
Lincoln-Douglas Debates of 1858 (Sparks ed.), 161-62.
140. Lincoln's Reply at Jonesboro 447
Lincoln-Douglas Debates of 1858 (Sparks ed.), 242-45.
141. Douglas's Rejoinder at Jonesboro . . . . ' . . . 450
Lincoln-Douglas Debates of i8j8 (Sparks ed.), 258.
142. Speech of Lincoln at Columbus, Ohio 451
Political Debates between Lincoln and Douglas (Columbus, i860), 250-51 passim.
Chapter XLIX. Secession and Coercion
143. Opinion of the Attorney-General upon the Powers of the
President 454
McPherson, Political History of the United States during the Great Rebellion, 51-52.
144. President Buchanan's Message of December 3, i860 . . 455
Richardson, Messages and Papers of the Presidents, v, 630-36 passim.
145. South Carolina Declaration of Causes 459
Moore, Rebellion Record, 1, 3-4, passim.
146. Dissolution of the Partnership 462
Davis, Rise and Fall of the Confederate Government, I, 209-14 passim.
Part Eight. The Constitution in the Civil War
Chapter L. The Nature oe the War
147. President Lincoln's Inaugural Address 464
148. The Call to Arms 466
Richardson, Messages and Papers of tlte Presidents, vi, 13.
149. Proclamation of Blockade 467
CONTENTS xv
150. President Lincoln's Message of July 4, 1861 .... 468
Richardson, Messages and Papers oj the Presidents, vi, 24-28 passim.
151. Proclamation of War 471
152. The Prize Cases 472
Chapter LI. Presidential Dictatorship
153. Ex parte John Merryman 474
McPherson, Political History of the United States during the Great Rebellion, 155-56.
154. Opinion of Attorney-General Bates 478
McPherson, Political History of the United States during the Great Rebellion, 159-61 passim.
Chapter LII. The War Power and Civil Rights
155. Senator Collamer on Confiscation of Rebel Property . . 482
156. Senator Sumner on the Rights of War 486
157. Representative Thomas on Confiscation 488
Congressional Globe, 37 Cong., 2 Sess., App., 219-20 passim.
Chapter LIII. Martial Law and the Constitution
158. Power of Congress to create a Dictator 491
159. "The Executive Power" , 493
Benjamin R. Curtis, The Executive Power (1862), passim.
160. Ex parte Milligan 495
4 Wallace, 2.
Chapter LIV. Emancipation
161. Contraband of War
McPherson, Political History of the United States during the Great Rebellion, 245.
162. Forfeiture of Slaves 502
163. Power of the President to emancipate Slaves .... 503
Whiting, War Powers of the President (1862), 66-68 passim.
164. Emancipation Proclamation 504
United States Statutes at Large, xii, 1268-69.
165. Resolution of Congress freeing Soldiers' Families . . . 506
United States Statutes at Large, xiii, 571.
166. The Thirteenth Amendment 506
Revised Statutes of the United Stales (1878), 30.
167. Judicial Interpretation of the Thirteenth Amendment . . 506
Slaughter-House Cases, 16 Wallace, 36.
xvi CONTENTS
Part Nine. The Reconstruction of the Union
Chapter LV. Presidential Restoration
168. President Lincoln's Proclamation of Amnesty .... 509
169. Last Speech of President Lincoln 512
Complete Works of Lincoln (Nicolay and Hay), 11, 672.
170. Appointment of a Provisional Governor for North Carolina 512
171. First Annual Message of President Johnson . . . .515
Chapter LVI. Origin op the Fourteenth Amendment
172. Report of the Joint Committee on Reconstruction . . .518
Report of the Joint Committee on Reconstruction, 39 Cong., 1 Sess. (1866), pp. xiii-xxi passim.
173. Representative Bingham on the Joint Resolution . . .520
174. Senator Howard on the Joint Resolution . . . ' . .523
175. The Fourteenth Amendment . 526
Chapter LVII. Theories as to the Status of the States
176. The State-Suicide Theory of Charles Sumner . . . .528
Atlantic Monthly, xn, 518-26 passim.
177. The Conquered-Province Theory of Thaddeus Stevens . . 530
Congressional Globe, 39 Cong., 1 Sess., 72.
178. The Doctrine of Forfeited Rights . 532
Report of the Joint Committee on Reconstruction, 39 Cong., 1 Sess. (1866), pp. viii-xii passim.
179. The Supreme Court on the Status of the States . . , 535
Texas v. White, 7 Wallace, 700.
Chapter LVIII. Congressional Reconstruction
180. Veto Message of March 2, 1867 . 538
181. Veto Message of March 23, 1867 541
182. Veto Message of July 19, 1867 543
Chapter LIX. The Supreme Court and Reconstruction
183. State of Mississippi v. Andrew Johnson, President . . . 547
4 Wallace, 475.
CONTENTS xvii
184. State of Texas v. White 55°
7 Wallace, 700.
Chapter LX. The Impeachment oe President Johnson
155. Opinion of Senator Wilson 553
Trial of Andrew Johnson, in, 215-16.
156. Opinion of Senator Fessenden 555
Trial of Andrew Johnson, in, 29-30.
187. Opinion of Senator Grimes . . 557
Trial of Andrew Johnson, in, 331-38 passim.
Chapter LXI. Judicial Interpretation of the Fourteenth Amendment
188. The Slaughter-House Cases 562
16 Wallace, 36.
Chapter LXII. The Fifteenth Amendment
i8g. Representative Shellabarger on the Proposed Fifteenth
Amendment 572
Congressional Globe, 40 Cong., 3 Sess., App., 98.
190. Senator Doolittle on the Proposed Fifteenth Amendment . 574
Congressional Globe, 40 Cong., 3 Sess., App., 151.
Revised Statutes of the United Slates (1878), 32.
192. Judicial Interpretation of the Fifteenth Amendment . . 576
United States v. Reese, 92 U.S., 214.
United States v. Cruikshank, 92 U.S. 542.
Index 579
Chapter I Colonial Charters And Establishments
At the outbreak of the Revolution there were two types of colonial establishment in British North America: the province and the corporate colony. Of the latter only Connecticut and Rhode Island survived the repeated attacks of the royal government. Both had received charters from King Charles Second, creating them corporations on the place. A happy combination of circumstances had secured legal recognition of the governmental organizations already existing. Both colonies, therefore, could continue their development as self-governing communities, with practically no interference from the Crown. Extracts from the Connecticut charter indicate the nature of the government. There were two kinds of provinces: the proprietary and the royal. The charter given to Lord Baltimore is an example of the proprietary grant. A royal province may be defined as one in which the King is his own proprietor, retaining both governmental and territorial powers. Maryland and Pennsylvania with Delaware were the only proprietary provinces left after the middle of the eighteenth century. New Hampshire, New York, New Jersey, the Carolinas, and Georgia had reverted to the Crown and become royal provinces.
i. The Charter of Connecticut — 1662}
Charles the Second, [&c] Whereas, . . . We have byn informed by the humble Petition of our Trusty and welbeloved John Winthrop, [and others] . . . that the same Colony or the greatest parte thereof was purchased and obteyned for greate and valuable considerations, And some other parte thereof gained by Conquest and with much difficulty, and att the onely endeavours, expence and Charge of them and their Associates, and those under whome they Clayme, Subdued 1 Connecticut Colonial Records, n, 3-1 1.
and improved, and thereby become a considerable enlargement and addition of our Dominions and interest there, — NOW KNOW YEA, that ... WEE HAVE thought fitt . . . to Create and Make them a Body Pollitique and Corporate, with the powers and Priviledges herein after mentioned; And accordingly WEE ... by theis presents . . . DOE Ordeine, Constitute and Declare That they, the said John Winthrop . . . [and others] . . ., and all such others as now are or hereafter shall bee Admitted and made free of the Company and Society of our Collony of Conecticut in America, shall . . . bee one Body Corporate and Pollitique in fact and name, by the Name of Governour and Company of the English Collony of Conecticut in New England in America; . . . AND further, wee . . . DOE Declare and appoint, that for the better ordering and manageing of the affaires and businesse of the said Company and their Sucessors, there shall be one Governour, one Deputy Governour and Twelve Assistants, to bee from tyme to tyme Constituted, Elected and Chosen out of the Freemen of the said Company for the tyme being, in such manner and forme as hereafter in these presents is expressed; which said Officers shall apply themselves to take care for the best disposeing and Ordering of the Generall busines and affaires of and concerning the lands and hereditaments herein after mentioned to bee graunted, and the Plantation thereof and the Government of the People thereof. And- ... WEE DOE . . . Constitute and appoint the aforesaid John Winthrop to bee the first and present Governour of the said Company; And the said John Mason to bee the Deputy Governour; And the said Samuell Willis, [and others] ... to bee the Twelve present Assistants of the said Company; to contynue in the said severall Offices respectively untill the second Thursday which shall bee in the Moneth of October now next comeing. AND further, wee . . . DOE Ordaine and Graunt that the Governour of the said Company for the tyme being, or, in his absence by occasion of sicknes, or otherwise by his leave or permission, the Deputy Governour for the tyme being, shall and may from tyme to tyme upon all occasions give Order for
CHARTERS AND ESTABLISHMENTS 3
the assembling of the said Company and calling them together to Consult and advise of the businesse and Affaires of the said Company, And that for ever hereafter, Twice in every yeare, (That is to say.) on every second Thursday in October and on every second Thursday in May, or oftener, in Case it shall be requisite, The Assistants and freemen of the said Company, or such of them (not exceeding twoe Persons from each place, Towne or Citty) whoe shall bee from tyme to tyme thereunto Elected or Deputed by the major parte of the freemen of the respective Townes, Cittyes and Places for which they shall bee soe elected or Deputed, shall have a generall meeting or Assembly, then and their to Consult and advise in and about the Affaires and businesse of the said Company; And that the Governour, or . . . Deputy Governour . . ., and such of the Assistants and freemen of the said Company as shall be soe Elected or Deputed and bee present att such meeting or Assembly, or the greatest number of them, whereof the Governour or Deputy Governour and Six of his Assistants, at least, to bee Seaven, shall be called the Generall Assembly, and shall have full power and authority to alter and change their dayes and tymes of meeting or Generall Assemblies for Electing the Governour, Deputy Governour and Assistants or other Officers, or any other Courts, Assemblies or meetings, and to Choose, Nominate and appoint such and soe many other Persons as they shall thinke fitt and shall bee willing to accept the same, to bee free of the said Company and Body Politique, and them into the same to Admitt and to Elect, and Constitute such Officers as they shall thinke fitt and requisite for the Ordering, mannageing and disposeing of the affaires of said Governour and Company and their Successors. AND WEE DOE hereby . . . Establish and Ordeine, that once in the yeare . . ., namely, the said Second Thursday in May, the Governour, Deputy Governour and Assistants of the said Company and other Officers of the said Company, or such of them as the said Generall Assembly shall thinke fitt, shall bee, in the said Generall Court and Assembly to bee held from that day or tyme, newly Chosen for the yeare ensuing, by such greater part of the said Company for the tyme being then and there present. . . .
2. Defense of Charter Governments. 1
The other Charge in the Bill is, That they have exercised arbitrary Power. If this be aimed at the Proprietary Governments, which however I don't accuse, I have nothing to say, but am sure that the Charter Governments stand clear of it. The Thing speaks loudly for itself. For in the Governments, where there are Charters and those Charters entire, all Officers Civil and Military are elected by the People, and that annually; than which Constitution nothing under Heaven can be a stronger Barrier against arbitrary Rule. For should it be allowed, that the People, corrupted or deceived, might instead of wise Magistrates chuse Tyrants and Oppressors to Lord over them one Year; yet it can't be imagined, that* after they have felt the Smart of it, they will do so the next. Nor can there be a greater Obligation on the Rulers themselves to administer Justice, than that their Election depends on it the next Year. Hence the frequent Choice of Magistrates has bin ever a main Pillar, upon which all who have aim'd at Freedom in their Schemes of Government, have depended.
AS the Reason is incontestable, so the Fact is apparent, that these Governments, far from retrenching the Liberty of the Subject, have improved it in some important Articles, which the Circumstances of Things in Great Britain perhaps don't require, or won't easily admit.
To instance in a few: There has bin from the beginning an Office erected by Law in every Country, where all Conveyances of Land are enter'd at large, after the Grantors have first acknowledg'd them before a Justice of Peace; by which means much Fraud is prevented, no Person being able to sell his Estate twice, or take up more Money upon it than it's worth. Provision has likewise bin made for the Security of the Life and Property of the Subject in the Matter of Juries, who are not returned by the Sherriff of the County, but are chosen
1 Jer. Dummer, Defence of the New-England Charters (1721), 35-39.
CHARTERS AND ESTABLISHMENTS 5
by the Inhabitants of the Town a convenient Time before the sitting of the Courts. And this Election is under the most exact Regulation, in Order to prevent Corruption, so far as Humane Prudence can do it. It must be noted, that Sherriffs in the Plantations are comparatively but little Officers, and therefore not to be trusted as here, where they are Men of ample Fortunes. And yet even here such flagrant Corruptions have bin found in returning Juries by Sherriffs, that the House of Commons thought it necessary in their last Session to amend the Law in this Point, and pass'd a Bill for choosing them by Ballot.
REDRESS in their Courts of Law is easy, quick, and cheap. All Processes are in English, and no special Pleadings or Demurrers are admitted, but the general Issue is always given, and special Matters brought in Evidence; which saves Time and Expence; and in this Case a Man is not liable to lose his Estate for a Defect in Form, nor is the Merit of the Cause made to depend on the Niceties of Clerkship. By a Law of the Country no Writ may be abated for a circumstantial Error, such as a slight Mis-nomer or any Informality. And by another Law, it is enacted, that every Attorney taking out a Writ from the Clerk's Office, shall indorse his Sirname upon it, and be liable to pay to the adverse Party his Costs and Charges in Case of Non-Prosecution or Discontinuance, or that the Plaintiff be Nonsuit, or Judgment pass against him. And it is provided in the same Act, That if the Plaintiff shall suffer a Nonsuit by the Attorney's mis-laying the Action, he shall be obliged to draw a new Writ without a Fee, in case the Party shall see fit to revive the Suit. I can't but think that every Body except Gentlemen of the long Robe and the Attornies, will think this a wholesome Law, and well calculated for the Benefit of the Subject. For the quicker Dispatch of Causes, Declarations are made Parts of the Writ, in which the Case is fully and particularly set forth. If it be a matter of Account, the Account is annexed to the Writ, and Copies of both left with the Defendant; which being done Fourteen Days before the Sitting of the Court, he is oblig'd to plead directly, and the
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