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PART 2: America’s First Constitutions and Declarations of Rights - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government 
Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).
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America’s First Constitutions and Declarations of Rights
POINTS TO REMEMBER
1. Beginning with the founding of Jamestown in 1607, Englishmen in the American colonies were entitled to the same rights as their countrymen at home. Not all inhabitants, including indentured servants and slaves, enjoyed these rights, however. As in England, there were also property qualifications for voting. The principles of republicanism and representative government were introduced into the colonies with the establishment of the Virginia House of Burgesses in 1619.
2. The Pilgrims who landed at Plymouth Rock in 1620, by virtue of their Mayflower Compact, brought a contractual theory of government to the colonies. This later served as the basis for popularly based constitutions. All of the colonies, however, carried on the constitutional and legal customs of Great Britain. The American colonists were familiar with the idea of a written constitution as a result of their experience with colonial charters, the Fundamental Orders of Connecticut (1639) being the most famous.
3. The colonists adopted the English theory of representation, which included the principle of geographical representation, or the representation of localities as well as people. The Americans modified the English system of representation, however, by introducing a residency requirement for elected representatives. The most significant colonial departure from the English system was the absence of an aristocratically based upper chamber.
4. Colonial assemblies enjoyed considerable but not complete independence. Their most important and decisive victory was their control of the purse strings. This gave them financial independence and eventually undermined British control of the colonies.
5. Local self-government, based on counties or townships, became firmly established in the colonial period, and helped to prepare the nation for the concept of federalism that triumphed in the Constitutional Convention of 1787.
6. In general, most American colonists enjoyed a great deal of religious liberty. There was some religious intolerance, however, even though colonial governments were more tolerant of dissenting or minority sects than were European governments. Freedom of speech was protected by British statutes and the common law, and the American press was also much freer than that of most of Europe.
7. The important turning point in Anglo-American relations was 1763, when the British adopted a bold new policy that sought to establish a new economic relationship between the colonies and the mother country. The Stamp Act, passed in 1763 for the purpose of raising revenue, met with the cry: “No taxation without representation.” It was the first in a series of parliamentary laws that led eventually to the American Revolution.
8. In the Declaration and Resolves of the First Continental Congress (1774), the colonists declared that, “by the immutable laws of nature, the principles of the English Constitution, and the several [colonial] charters,” they were “entitled to life, liberty and property [and] all the rights, liberties, and immunities of free and natural born subjects within the realm of England [and] to the common law of England.” Rejecting legislative supremacy, they asserted that the legislative authority of Parliament was limited by the higher law of the Constitution. In their Declaration of the Causes and Necessity of Taking up Arms (1775), the colonists listed their grievances against Parliament, declaring they were “resolved to die freemen rather than to live slaves.”
9. The Preamble of the Declaration of Independence is based on the theory that the American people are entitled to certain natural rights, including life, liberty, and the pursuit of happiness, and that all men are created equal. The main text of the document, on the other hand, asserts that the inhabitants of the colonies are entitled to various constitutional, common law, and charter rights. The claim that “all men are created equal” has received different interpretations, one being that the colonists were simply contending that the American people, as a nation, were entitled to the same rights as Englishmen. Later generations interpreted the equality language of the Declaration of Independence more broadly as a prohibition against slavery.
10. The most comprehensive statement of colonial rights and privileges made during the revolutionary period appeared in the Declaration of Rights of 1774, wherein the colonists identified nine different rights. In essence, however, the quarrel between Parliament and the Ameri can assemblies over rights was symptomatic of a more fundamental disagreement: the meaning of the English Constitution and of constitutional government.
11. The year 1776 marks the birth of constitutional government in the United States and in the world at large. This was the first time in the world’s history that a large group of communities—now independent and sovereign States—had begun the formation of their own governments under written constitutions. This was also the year in which the Articles of Confederation, our first national constitution, was written.
12. The principal figure in the drafting of the new State constitutions was John Adams, “the father of American constitutionalism.” His pamphlet, “Thoughts on Government,” was widely used as a source of understanding, and Adams was the chief architect of the Massachusetts Constitution of 1780. This was the best of the early State constitutions and the first to employ a check and balance system.
13. The first State constitutions contained a variety of flaws requiring subsequent correction. None was written by a constitutional convention or submitted to the people for approval. The first State constitution resting on a thoroughly republican base was the Massachusetts Constitution of 1780, which set the standard for the United States Constitution. It is still in force today and is the oldest constitution in the country.
14. In general, our first State constitutions contained three basic weaknesses: (a) They failed to provide for an adequate system of separation of powers; (b) all but the Constitution of New York failed to establish an independent executive; (c) all lacked a provision establishing the constitution as the supreme law. In addition, a number of State constitutions neglected to provide for their amendment. Nor did all of the early State constitutions contain a bill of rights.
15. The first draft of the Articles of Confederation was made in the summer of 1776. But the document was not submitted to the States for approval until the fall of 1777 and did not take effect until 1781. The three major sources of contention among the States were: (a) the western land claim of Virginia and other States; (b) the system of representation in Congress; and (c) the basis for determining how much each State should contribute to the national treasury. The most important issue in the writing of the Articles was the question of State sovereignty. This was resolved in favor of the States, Article II declaring that “Each State retains its sovereignty, freedom, and independence.”
16. The Articles of Confederation were little more than a treaty among sovereign States. The States granted certain of the same basic rights and privileges to citizens of other States as they granted to their own citizens. The government was exceedingly weak, however, consisting of a unicameral Congress that lacked the power even to regulate commerce or levy a tax. No provision was made for an executive or judiciary and the Confederation government was forced to rely upon the States for the enforcement of its laws. Because the unanimous vote of all of the States was required to amend the Articles, it was virtually impossible to change the document even when its faults were generally acknowledged. Only by circumventing Congress were the nation’s leaders able to reform the system and establish a new Constitution.
The seeds of liberty were planted on American soil in 1607, when the first English settlers landed in Virginia and founded Jamestown. They were not the first Englishmen to attempt to establish a colony in Virginia, but they were the first to win a permanent foothold. Lured by tales of great wealth, they were destined to suffer months and even years of hunger, fever, and death in a hostile wilderness. It was the destiny of their children and succeeding generations to develop the richest and most powerful colony in British America.
The plan to colonize Virginia was not a part of any government scheme but an effort by London merchants to discover gold and silver, as the Spanish had done a century before in Mexico and farther south, and to explore for a northwest passage. The Virginia colony was thus established under the auspices of a private corporation known as the London Company, by virtue of a charter granted by James I. In the charter the King guaranteed that the colonists and any children born to them “shall have and enjoy all Liberties, Franchises, and Immunities … as if they had been abiding and born within this, our Realm of England.” In other words, Englishmen in the colonies were to enjoy the same rights granted to Englishmen at home—such as trial by jury and the right to be taxed by representatives of their own choosing. Freedom was actually planted in Virginia, then, even before the forebears of today’s Virginians first saw their land. Before long Virginians were not only defending their freedom but enlarging it to the point that they actually enjoyed more liberty than their British cousins in the mother country.
Despite the hardships of the early years, Virginia became increasingly attractive to Englishmen at home because of the opportunities it presented for private ownership of land. Corporate ownership gave way to individual ownerships in the colony after 1618, when the London Company began paying dividends and increasing incentives by giving away land to its stockholders, to colonists who had served the company, and to individuals who would pay for an immigrant’s fare across the Atlantic. Even the poverty-stricken immigrants, who often came as indentured servants, had a powerful incentive to come to Virginia. An indentured servant was a person who signed an indenture, or contract, by which he agreed to sell his services in the colony for three to five years as a way of paying for the voyage from Europe. Having satisfied the terms of the agreement, he was then free to strike out on his own and become an independent landowner himself.
During the years 1634–1704, about 1,500 to 2,000 indentured servants arrived annually. Governor William Berkeley reported in 1671 that there were some 13,000 in the colony, about thirteen percent of the population. Many became great landholders and leaders in Virginia government. Seven of the forty-four members of the colonial legislature in 1629 had been indentured servants just five years earlier. To a great extent, the aristocracy of colonial Virginia was composed of self-made men. Thomas Jefferson would later boast that Virginia had a “natural” aristocracy, which he viewed as superior to an aristocracy based on hereditary entitlement and special privilege. But Virginia denied no Englishman the opportunity to acquire property—and with it a substantial degree of individual freedom. In sharp contrast to Great Britain, landowners constituted the large majority of Virginia’s colonial population—eighty percent or more.
The first Negroes—about twenty in number—came to Virginia in 1619 aboard a Dutch warship. They had been captured in a raid in the West Indies and were traded to the Virginians in exchange for supplies. They came not as slaves, however, but as indentured servants. By 1650, there were only 300 Negroes in Virginia, and most of these were freemen who had completed their periods of indentured service. One of the first to gain his freedom was Anthony Johnson, who ironically also became the first man in the colony to own slaves. It was not unusual, even as late as 1865, for free Negroes in Virginia to own Negro slaves, employing them often in places of business. The institution of slavery was not established in Virginia until 1662, when the legislature enacted a law requiring that all servants who were non-Christians should be held as slaves for life. By means of this statute, Virginia accepted slavery and made it legal. It was a fateful step that marked the introduction of slavery into the Southern colonies. Like a blight, it spread to the North as well, and soon became an accepted practice throughout the American colonies. The first slave-trading port on the continent was actually Boston.
Two hundred years would pass before slavery was abolished in North America. The Negro was thus the last of the founding generation of Americans—our first immigrants—to taste the fruits of liberty that were originally cultivated in Tidewater Virginia.
Slavery, of course, had existed since ancient times and was not limited to the American colonies or to the black race. It flourished in Greece and Rome and throughout medieval Europe and the Middle East. The Spanish introduced human bondage into the West Indies in 1502. The discovery of the New World created a heavy demand for labor, stimulating the slave trade. European traders and African chieftains developed a vast commercial system for the capture, sale, and transportation of slaves, and it is estimated that during the sixteenth, seventeenth, and eighteenth centuries at least fifteen million Africans were brought to the New World by the maritime powers of Europe. Although slavery was eradicated in the United States more than a century ago, it persists today, in other parts of the world—but in a far more brutal form and on an even larger scale. This is the system of forced labor that is characteristic of the modern totalitarian state. It consists not of individual ownership of human beings as a species of private property, but of government ownership by the state, usually in the form of the slave labor camp—what Alexander Solzhenitsyn, the Russian writer, has described as the Gulag Archipelago. It is estimated that during the reign of Joseph Stalin (1929–1956) there were twelve to twenty million people housed in Soviet camps during any one year.
At about the same time the first Negroes were brought to the Virginia colony, there were two other important events that would later have an enormous impact on American political and constitutional development. In 1619, the House of Burgesses convened in a small church in Jamestown. This was the first representative assembly in the Western Hemisphere. It gave Virginians some measure of self-government almost from the outset and established the principle of republicanism not only for Virginia but also for her future sister colonies along the Atlantic Coast. One of the first steps taken by the assembly was to enact legislation prohibiting gambling, drunkenness, swearing, and idleness, and also requiring every colonist to attend church regularly.
The second important event of this period was the landing of the Pilgrims at Plymouth, Massachusetts, in 1620. Almost all of the New England colonists were Puritans who had a religious as well as an economic interest in coming to the New World. They differed in outlook and behavior from their more orthodox Anglican neighbors situated in Jamestown, and brought with them a set of religious doctrines that anticipated the founding of what John Eliot called the Christian Commonwealth, or a blend of theocracy and pure democracy. Like the Jamestown colonists, they came to the rocky shores of New England under the auspices of the Virginia Company. The first inhabitants of Massachusetts were not simply Puritan Nonconformists but radical Separatists. Whereas the Nonconformists aimed to purify the Anglican church from within, the Separatists were determined to break away and worship as they pleased in their own congregations. Before leaving Europe, they had tried and failed to secure a guarantee of religious freedom from James I; but they learned “that he would … not molest them, provided they carried themselves peaceably.” By virtue of this historic concession on the part of the monarch, British America was opened to settlement by all dissenting Protestants.
Before leaving ship, they entered into a solemn agreement for the formation of a government upon reaching land. This became the famous Mayflower Compact, by which “in the presence of God and one another” they agreed to “covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation” and to “enact, constitute, and frame such just and equal Laws, Ordinances, Acts, Constitutions, and Offices, from time to time, as shall be thought most meet and convenient for the general Good of the Colony; into which we promise all due Submission and Obedience.” What the founders of the Massachusetts Bay Colony agreed to, in other words, was to form a government for self-rule based on popular consent and rule of law. The Mayflower Compact was like the church covenant by which Separatists formed congregations, except that it bound its signers to observe the ordinances of a civil rather than a religious society, and professed allegiance to the King as well as God. It marks the introduction into the American colonies of a compact theory of government which would later serve as the basis for both popularly based State constitutions and the United States Constitution, the latter being viewed as a compact among the States as well as the people in the States.
Generally speaking, the Puritans subscribed to the view that a covenant was the necessary basis for both the church and the state. These two classes of covenants were known respectively as the “church covenant” and the “plantation covenant”—and there was a close relation between the democratic method of forming a congregation or church and the democratic method of forming a state, both emphasizing the importance of the individual. In time, the early tendencies in New England toward aristocracy and theocracy disappeared and there was a democratization of its social and political institutions. Perhaps the most significant aspect of this democratic spirit was the emphasis on local self-government, which found expression in the New England town meeting. Puritan democracy, however, was reserved primarily for church members. The Puritans readily embraced English common law and the English constitutional tradition; and they accepted in principle equality of civil rights. But they did not endorse the idea of political equality, and they did not believe that all members of society should participate in the political process. In these respects the New England and Southern colonists shared similar political views.
Although the Catholics in Maryland, the Quakers in Delaware and Pennsylvania, and the Dutch Reformed in New York and New Jersey introduced even more religious diversity into North America, they nevertheless followed the same path of political development as the New England and Southern Colonies. The middle colonies were more of a melting pot of religious and national groups than any other part of America. From the standpoint of their evolving political institutions in the colonial era, however, all of the colonies, despite their ethnic and religious and socioeconomic differences, tended to carry on the constitutional and legal customs of Great Britain, the absence of an hereditary aristocracy being one of the few conspicuous departures from the British model.
In all of the colonies, whether royal, proprietary, or corporate, the colonial governments exhibited the same general pattern. In each colony there was eventually a governor and a bicameral legislature, as in England there was a king and a two-house Parliament. In all of the colonies except Rhode Island and Connecticut, the governor was appointed rather than elected. The upper chamber of the legislature consisted of the Governor’s Council, whose members, except in Massachusetts, Rhode Island, and Connecticut, were also appointed; and in the lower chamber the members were elected by the people. As in England, executive, legislative, and judicial functions were somewhat mixed, mainly because the Governor and his Council sat as the Supreme Court. There was nevertheless a rudimentary separation of powers between the governor and the assembly. The American colonists were familiar with the idea of a written constitution as a result of their experience with colonial charters, the Fundamental Orders of Connecticut (1639) being the most famous. Though the Mayflower Compact was the first political covenant, the Fundamental Orders were for all practical purposes the first modern written constitution.
Until the time of the American Revolution, the colonists enjoyed the same civil liberties as native Englishmen. Like their English cousins, however, they did not have equal political rights, and the franchise was generally restricted throughout the colonies. The right to vote or hold office was limited by religious qualifications in some colonies, and by property qualifications everywhere.
One important departure from the English theory of representation was the evolution during the colonial era of the principle of legislative residency. Whereas members of the House of Commons have traditionally been permitted to represent any constituency in the country, no matter where they happened to live, the colonists adopted the distinctively American custom of requiring assemblymen to be residents of the district they represented. This custom was not written into the Constitution, which provides merely that members of the House and Senate must be inhabitants of the State in which they are elected, but it has continued to be a part of the American political tradition at both the Federal and State levels down to the present.
The idea behind this principle of representation is the belief that a local resident or “home town boy,” as the Americans say, is more likely to have a sympathetic understanding of the wants, needs, and interests of the people in a given community than an outsider. In sharp contrast to England, where the population is homogeneous and concentrated, the United States has always been more culturally diverse, even within a single State, with a population that is partly urban but is also significantly rural, scattered across vast expanses of territory that dwarf the British Isles. In such a society, the residency requirement helps to satisfy the need for familiarity and shared values between the representative and his constituents.
An important feature of the English theory of representation that was continued in the colonies and in the Constitution of 1787 was the principle of geographical representation, which asserts the view that a legislator does not represent just people as such, but people in a broader cultural sense, including their localities and their way of life. It is reflected not only in the residency requirement that grew out of our colonial experience but also in the representational basis of Congress designed by the Framers. Thus the theory of representation embodied in the Constitution rejects absolute political equality and seeks instead to balance the population and geographical principles. The system of representation in the Senate, for example, gives each State the same number of Senators, irrespective of the size of the State’s population. Likewise, the House of Representatives, though apportioned on the basis of population, includes at least one Congressman from each State, irrespective of population.
The principle of geographical representation has also served over the years as a check on overbearing majorities. It protects the minority rural population from the multitudes of city dwellers; it gives the small town or village a voice in the formulation of public policy; and it encourages a broad representation of different points of view. In recent years, however, the Supreme Court has taken a different view. In Gray v. Sanders (1963), the Court ruled that “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments, can mean only one thing—one person, one vote.” The Court has been divided on this issue, however, and the dissenters have contended that there is no evidence to support the Court’s new philosophy of political equality. According to Justice Frankfurter, it was “the basic English principle of apportioning representatives among the local governmental entities, towns or counties, rather than among units of approximately equal population,” that took root in the colonies; and Justice Harlan argued that the principle of “one person, one vote” has “never been the universally accepted political philosophy in England, the American colonies, or in the United States.” Although the deeply rooted tradition of geographical representation seemed to refute the historical accuracy of the Court’s assertion that the American political tradition of political equality meant absolute equality based on numbers alone, Chief Justice Warren insisted nevertheless in Reynolds v. Sims (1964) that “Citizens, not history or economic interests, cast votes. Considerations of area alone provide an insufficient justification for deviations from the equal-population principle. … [P]eople, not land or trees or pastures, vote.” The question, however, is not who votes, but who and what interests legislators are supposed to represent.
Whatever the merits of the Supreme Court’s view of the matter, it seems clear that the principle of republicanism which the English settlers brought with them to North America was only modestly changed during the next century and a half of colonial government. In every colony, local units of government, whether townships and villages or cities and counties, were accorded representation, thereby perpetuating the English system of geographical representation. The only deviation was the addition of the residency requirement, which actually strengthened and reaffirmed the principle of geographical representation. The “one person, one vote” principle is of recent origin, and there is no evidence that it was adopted in any of the colonies—or indeed in any of the States that joined the Union after the Constitution was adopted.
The most significant departure from the British example was the democratic class structure of colonial society, which gave rise to a new form of representative government in America and, as we shall later see, laid the foundation for a system of separation of powers that was radically different from that which existed in Great Britain. In no colony did a landed aristocracy, based on hereditary privilege, gain a foothold. Hence there were no upper chambers comparable to the House of Lords in any of the colonial assemblies. The system of representation adopted made no allowance for the representation of classes or political privilege, and in this sense rested on the principle of political equality. But it was not a complete equality, for the right to vote, as in England, was conditioned, as we noted earlier, on property ownership—and in some colonies on religious belief as well. Catholics, for example, were often excluded from the franchise; Anglicans were at a disadvantage in New England but dominated the southern colonies. These restrictions also applied in a number of colonies to individuals seeking public office.
Political power thus rested in all of the colonies in the hands of the “freemen” or “freeholders,” that is, adult white males of some means. Because of the ready availability of cheap land everywhere, the suffrage was actually much broader than one might think, and it would be erroneous to assume that a small elite governed the colonies to the exclusion of the general population. Thus, the landed gentry of Virginia dominated public affairs, but it was open to any enterprising young man of diligence, ability, and good character. Men of education and wealth naturally played a leading role, however, as they do today. In the early period the great landowners and members of the clergy tended to be the leaders of colonial society and government; but as we approach the American Revolution, members of the legal profession, physicians, educators, merchants, and military leaders became increasingly conspicuous in representative assemblies.
The members of the Federal Convention of 1787 resisted attempts to write property or religious qualifications for voting or holding office into the Constitution. Members of Congress, the President, the Judiciary, and presidential electors were not required to meet a property qualification, and religious tests were banned. In deference to States’ Rights, the States were left free to maintain property qualifications for the suffrage as they saw fit, and so the colonial practice of limiting the franchise to freeholders was continued into the nineteenth century. As the century progressed, however, pressure for universal suffrage increased and property qualifications were gradually eliminated in all of the States. With the adoption of the Fifteenth Amendment (1870), which extended the right to vote to Negroes, the exclusive power of the States to determine voter qualifications began to fade. This amendment was followed by the Nineteenth Amendment (1920) granting women the right to vote, and more recently by the Twenty-Fourth (1964) and Twenty-Sixth (1971) amendments eliminating the poll tax and extending the franchise to persons eighteen years of age.
As a result of these amendments and various decisions of the Supreme Court, the principle of republicanism that originated in England and was carried across the Atlantic to the American colonies has changed substantially over the years, and representative government today is considerably different from what it was two hundred years ago. The basis of representation in State and Federal legislative assemblies has changed as a result of the “one person, one vote” decisions of the Supreme Court, and the main standards for voter qualification in elections, whether Federal, State, or local, are now set by the Federal government instead of the States.
The degree to which these changes have contributed to the growth of liberty, order, and justice is a complex question. Although there is more political freedom in the United States than possibly any other country in the world, at least a third of the American electorate—and often as much as half—refuses to participate in the political process or exercise the right to vote. Ironically, political apathy seems to have increased with the expansion of the suffrage.
The price of liberty, it has been said, is eternal vigilance. Can democratic government promote and protect liberty, order, and justice if half the population is failing to hold public officials accountable for their actions? Is there a lesson to be learned from the history of ancient Rome? Once a thriving republic, it fell to tyranny because the people had become more interested in “bread and circuses” than in safeguarding their political institutions. And how informed is the American electorate? Polls taken in recent years reveal an alarming degree of ignorance among the American people about the Constitution, national and international affairs, the record and achievements of their representatives, and of the political and economic forces that are actually controlling their lives and the destiny of the country. The greatest threat to liberty may well be when the people take liberty for granted and allow others to do their thinking and make their decisions for them. There are some who seem to prefer security to liberty. What is the solution? The establishment of voter qualification tests to determine an individual’s knowledge of the system, in the hope of encouraging a better informed electorate? Improved teaching of civics in the schools?
These are difficult questions that offer no easy solutions. Yet it behooves us as a free people to reexamine and continually reinvigorate our political institutions; to be alert to the first transgressions before dangerous precedents are set; to jealously protect the fundamental principles which support our form of government and not to compromise them for the sake of convenience. It was this intense love of liberty that compelled the American patriots, pledging their lives, their personal freedom, and their fortunes, to take up arms against the British. Would the American people today make the same personal sacrifices as their forebears for the causes that led to the American Revolution?
Relations with Great Britain
In retrospect, it would seem that the American colonies were destined to gain independence at some point in time; and in many ways they were already independent before the Revolution. From the day the first settlers landed, the colonies governed themselves in most matters. They had their own charters of government, which served as written constitutions of a sort, and their own provincial assemblies, which exercised a considerable degree of autonomy.
The colonies were part of Britain’s vastly expanding empire, but the British empire was commercial in nature, not imperial. The King’s ministers were not interested in political control of the colonies for its own sake, for military purposes, or as a tax base. They viewed the colonies instead as a great commercial reservoir that contributed to the economic prosperity of the mother country by supplying England with raw materials and by providing markets for the sale of English-made goods. Consequently, neither Parliament nor the King’s ministers troubled themselves much with American affairs. They were content if the Thirteen Colonies continued to ship to Britain their tobacco, furs, dried fish, grain, and lumber, and the colonies were content to be ruled from Westminster so long as British regiments and British fleets defended America when wars arose with the French or the Spaniards, and so long as the colonies held the real political power in provincial assemblies. Thus the colonies enjoyed what Edmund Burke called the “salutary neglect” of London officialdom. The more the colonies were neglected politically by England, the more the colonists prospered.
Because England had no real political interest in the colonies, especially in the seventeenth and early eighteenth centuries, colonial administration of the colonies was unplanned and haphazard. No single agency was ever given primary responsibility for the colonies until the very eve of the Revolution. By the early 1700s, there were six agencies of the British government, all located in London and out of touch with America, sharing responsibility for administering the colonies: the Board of Trade, The Privy Council, the Treasury and Customs Office, the Admiralty, the Secretary of State for the Southern Department, and, of course, Parliament. But the colonies were never overrun with meddlesome bureaucrats. Even though the Americans were subjects of George III in 1776, few of them saw many outward signs of British sovereignty. Only nine of the colonies had royal governors, and these grand figures stayed close to the colonial capitals, or else spent much of their time in England. Judges, though appointed by the Crown, were usually American-born. Uniformed British troops were at the frontiers, but not regularly in the settlements. The only fairly numerous body of officials of the British government were the revenue officers who collected port duties under the Navigation Acts, and they too were mostly American-born.
In the eyes of the English, the colonies were technically mere corporations—subordinate to Parliament and without any inherent sovereignty. Colonial legislatures possessed only such privileges as the King chose to grant to them. British officials also insisted that the rights and powers won by Parliament in the Glorious Revolution of 1688 did not automatically extend to the colonial assemblies, and that the royal prerogative (inherent powers reserved by the Crown that were not surrendered to Parliament) was therefore more extensive over the American legislatures than over Parliament.
Acting upon these assumptions, British officials repeatedly rejected requests from the colonies to create new legislative districts or to pass “triennial acts” providing for automatic meetings of the legislatures at regular intervals. They also refused to accept speakers chosen by the assemblies on an automatic basis. These were rights that Parliament had long enjoyed. The principal check on the colonial assemblies was the Board of Trade, which instructed the royal governors, controlled colonial patronage, assisted the Privy Council in appeals from the colonial courts, advised Parliament and the Crown on matters of colonial policy, and, most significantly, had the power to recommend approval or disallowance of colonial legislation, much like a court exercising judicial review. Between 1696 and 1774, some 400 acts of colonial legislatures were recommended for disallowance by the Board. Although this led to disputes from time to time, the colonists cheerfully acknowledged the right of the Board, as an agency of the King-in-Parliament, to carry out its advisory functions, and its legitimacy was never seriously questioned. Nor, for that matter, was the authority of the other agencies. The conflict between England and the colonies, as we shall see, centered mainly on Parliament and the scope of its powers.
It was in the sphere of finance that the assemblies won their most important and decisive victory, and this proved to be the undoing of the British. Despite all of the theory repudiating the legal sovereignty of the colonial assemblies, these bodies in reality controlled the purse strings and in effect exercised a considerable amount of political sovereignty. The power to tax and spend rested in the hands of the colonial legislatures. Acting upon instructions from London, Royal governors repeatedly, but without success, demanded that the assemblies pass permanent revenue acts instead of annual appropriations. In New York, for example, the colonial assembly, patterning itself after the House of Commons, limited its appropriations to one year, stipulated in great detail how the money was to be spent, and refused to accept amendments to revenue bills. When Governor George Clinton tried to claim some authority over fiscal matters by the veto power, the assembly simply blocked all legislation and brought the Governor to his knees. Through the clever technique of appropriating the salaries of public officials by name and not by office, the colonial assemblies also effectively limited the governor’s power of appointment and removal. Even the local militia were under the control of the assemblies. Similar incidents occurred in Pennsylvania, Massachusetts, and the Carolinas.
Between 1699 and 1766, the Virginia offices of treasurer and speaker of the House of Burgesses were always held by the same person, thereby giving the legislature not only control over fiscal policy but custody of the funds as well. In nearly all of the provinces money granted for special purposes, such as the payment of troops, was often lodged in the hands of commissioners named in an appropriation act. “He who pays the piper,” according to an old English proverb, “can call the tune.” The importance of local control of revenue and expenditures can hardly be overestimated. Governors were virtually helpless in many instances to support the royal prerogative or the wishes of the King’s ministers in the face of colonial assemblies that could specify the expenditures of every cent and withhold funds from any governmental function they pleased. This situation contributed substantially to the growth of colonial independence and the gradual decline of British power in America.
In 1763, Patrick Henry defended the dominion of Virginia in an action at law called the Parson’s Cause. The case arose when clergymen of the Church of England—which was Virginia’s established church—brought suit against the commonwealth because Virginia’s Assembly in 1758 had passed a statute that temporarily reduced the salaries paid to clergymen. In England, the Privy Council had declared the law to be unconstitutional; a parson therefore had to file suit to obtain the funds he had been denied. Although the jury in the Parson’s Cause trial gave a verdict for the plaintiff, it awarded him only one penny in damages. The verdict was actually a victory, then, for the Assembly that had reduced the parsons’ salaries. Patrick Henry, whose eloquence had won over the jury, argued in the case that the British Crown, as represented by the Privy Council in England, had no power to set aside an act of the Virginia Assembly. This argument was clearly close to declaring that Virginia was politically independent of Britain. Twelve years later, of course, Henry ended his famous speech to the Virginia Assembly with the cry, “Give me liberty, or give me death!” It was by such audacious men that colonial assemblies were persuaded by 1775 to cast off the authority of Crown and Parliament.
Local Government in the Colonies
If the representative assemblies in every colony were the most powerful feature of the colonial constitutions, the American institutions of local government still had nearly as much influence on the development of the American political system that culminated in 1787. English local government was far more vigorous and popular than local government in France or in most of the rest of Europe during the eighteenth century; but American local government was still more active than the British forms, and attracted heartier public support.
By 1763, the forms of American local government varied considerably from province to province, and even within provinces—or colonies. Along the wild western frontier, local government was democratic and informal, but highly effective—as it had need to be because of the frontier’s perils and the need for prompt cooperation among neighbors. At the other extreme, some towns along the Atlantic seaboard held charters of incorporation that conferred great powers upon municipal governments, much like the privileges held by venerable European cities.
There were forms of county government throughout British North America, but the county system of local government was strongest in the South, and the “middle colonies” of New York and Pennsylvania. In Virginia, the political powers of the county were greater than they are today in any American county. Each Virginia county was controlled by a county court composed of the county’s several Justices of the Peace. Even the colony’s Assembly did not venture to interfere with the Justices’ authority. New Justices of the Peace were selected by the Governor from a list submitted by the county court itself, so that the court became self-perpetuating. These Justices of the Peace were appointed from the class of landowners that was still specified in law as gentlemen. They were paid neither salaries nor fees, but served at their own expense. Virtually independent of both Williamsburg (then Virginia’s capital) and London, these county courts amounted to a kind of federal system within Virginia, and also within other southern States that allocated large powers to counties. Thus county government became a preparation for the concept of federalism that triumphed in the Constitutional Convention of 1787.
In New England—and later, in those States to the west that were settled primarily by New Englanders—the “township” system of local government was more important than the county organization, even though counties had their functions in New England, too. New England’s town meetings could be attended by almost anyone, although in 1763 not all local residents were entitled to vote at these meetings. Township officers were elected annually in those times, and that was another practice that tended to make township government democratic. New England’s town meetings had begun as formal gatherings of men in good standing with the Puritan or Congregational churches. By 1763, they had become civic institutions and there was no religious test for participation.
Both county and township were political structures inherited from centuries of English experience. Yet in America these institutions took on a renewed vigor or were adapted to American circumstances. By the 1830s, for example, the French traveler Alexis de Tocqueville found the system of American local government—especially the township—a major reason for the successes of the American democracy.
Earlier it was noted that representative government was Britain’s most important contribution to America’s Constitution. The British succeeded in conferring upon the colonies a truly representative system of provincial and local government. This made possible the establishment of liberty, order, and justice in the new nation. As Benjamin Franklin, John Dickinson, and a good many other leading men at the Constitutional Convention would recognize sadly even in 1787, it was a melancholy irony that the political patrimony bequeathed to America by Britain should itself be a major cause of Britain’s loss of her North American empire.
Civil Liberties in the Colonies
Among the civil liberties that are enumerated in the Bill of Rights of the American Constitution, those providing for the free exercise of religion, freedom of speech, and freedom of the press are noteworthy. It is instructive to examine the status of these freedoms in the Thirteen Colonies on the eve of the American Revolution.
First, the free exercise of religion. In the seventeenth century, America was a refuge for fugitives from religious persecution, including Puritans, Quakers, and Catholics. But the persecuted, when they have opportunity, sometimes persecute in turn, and so it was in North America until religious hostilities diminished in the eighteenth century on both sides of the Atlantic.
By 1763 the congeries of religious sects and denominations had learned tolerably well how to get along peaceably with one another. The Congregationalists of Massachusetts, for example, had found it necessary to permit Anglicans to settle among them in large numbers; the Quakers of Pennsylvania had come to terms with the Scotch-Irish Presbyterians of the western regions; Methodist preachers were evangelizing the backwoods and the frontier; the feeble Catholic minority in Maryland and New Jersey was tolerated; the handful of Jews were not even noticed; and the Deists, though as few in number as the Jews, had won over some eminent men, including Thomas Jefferson, Benjamin Franklin, and John Adams. Nine of the Thirteen Colonies had established churches in 1763: the Church of England in Virginia, Maryland, the Carolinas, Georgia, and the southern counties of New York; the Congregational Church in Connecticut, New Hampshire, and Massachusetts and its dependencies.
“Establishment” of a church meant that it was a “preferred” sect that might enjoy certain economic privileges; it did not mean that other churches were banned. For the colonial governments were far more tolerant of dissenting churches than were European governments. Sometimes religious minorities were exempted from paying tithes (church taxes enforced by the public authority); sometimes members of congregations were permitted to pay their tithes directly to the church of their choice. Such liberality on the part of the state was unknown in much of Europe at the time.
There was, nonetheless, discrimination against Roman Catholics, Jews, and even dissenting Protestants, particularly the Baptists, if they refused to comply with local laws that benefited a preferred sect. For example, colonial governors were instructed not to indulge Catholics in “liberty of conscience,” because Catholics were regarded as potentially subversive of the established state and church. On the eve of the Revolution, only in Pennsylvania could Catholic masses be celebrated publicly. The British government’s policies in 1763 that seemed to protect the French Catholics of Canada were especially frowned upon by New Englanders, New Yorkers, and other Americans who had hoped that British victory in the recent Seven Years’ War (French and Indian) would result in the subjugation and possible suppression of Catholicism in Canada. Eleven years later, when Parliament passed the generous Quebec Act, patriots in America denounced the legislation as one of the “Intolerable Acts” because it guaranteed religious freedom to the Quebec Catholics. Sometimes the more ardent advocates of civil rights angrily draw the line at a proposal for the civil rights of other people.
All in all, though, Americans enjoyed the benefits of religious liberties—although some American leaders feared that fierce intolerance lay just beneath the surface of the religious calm. Nearly all Americans professed to be Christians, even if they sometimes were rather eccentric Christians. But not all Christians always observe the doctrine of brotherly love. Had it not been for the British Toleration Act of 1689, religious minorities in several of the Thirteen Colonies might have been driven away.
Second, what of “the freedom of speech, or of the press”? By 1763, a score of newspapers were published in the Thirteen Colonies, though sometimes eleven of a paper’s twelve columns might be filled with advertisements. Two years after the British took Quebec from the French, there was little controversy within British North America. The only alarming news came from the region of the Great Lakes, where Chief Pontiac’s Indians were attacking British garrisons. Freedom of the press and of speech seemed well established.
This had not been the case earlier in the eighteenth century, when printing and publication had required licenses from public authority in both Britain and America. In the early years of newspaper publication, before the average man had grown accustomed to newspapers, governments had feared (not without reason) the extent to which public opinion might be misled by libels and false reports printed in newspapers. But gradually controls upon the press on either side of the ocean had been relaxed, in part by court decisions, and, although some government power of licensing the press and of prior censorship remained in 1763, the American press was much freer than that of most of Europe. Freedom of speech was also protected by British statutes and by common law—short of speech that might encourage sedition, incite to riot, be slanderous, blasphemous, or obscene, or otherwise result in breaches of the peace. In 1763 there was no political dispute in America controversial enough to justify the breaking up of a public meeting by the guardians of the peace.
Only two years later, however, in 1765, this era of good feeling came to a most abrupt and disastrous end. The cause of disruption was the Stamp Act that the British imposed upon the colonies as a means of raising sixty thousand pounds in annual taxes to help defray the costs of the war with Pontiac’s Indians on the northwestern frontier. (The British government expected to have to pay 350,000 pounds a year to maintain troops in North America.) Soon the famous cry “No taxation without representation” was heard from the Patriots. That the Stamp Act taxed newspapers and legal documents infuriated America’s newspaper publishers and lawyers—and these were powerful classes to offend. One consequence was a concerted attack by most of the American newspapers upon both Parliament and King George III—and attacks by mobs upon the printing houses of the few Tory (or pro-British) newspapers.
Civil rights are sorely battered in time of war. Until the fighting ended in 1783, little freedom of speech or of the press was allowed, from New Hampshire to Georgia—except freedom of a sort for whichever side, Patriot or Loyalist, happened to be in control of a town or a region. Those two decades of violent interference with publication and public speaking were not forgotten when the first State constitutions were drafted.
The Movement Toward Independence
The Americans prospered, as we have seen, under more than a century of British rule. They enjoyed a great deal of personal freedom and independence. It would therefore be a gross mistake to view the colonists as living in a repressive state or to suggest they were brutalized by English tyrants. There were disagreements, to be sure, but none so fundamental as to provoke a public uprising threatening the existence of government.
Precisely how long this peaceful state of affairs might have lasted had the British continued to follow their “hands-off” policy toward the colonies is uncertain. In any event, 1763 marks an important turning point in Anglo-American relations, for this is the year when the mother country embarked upon a bold new course of action to increase revenue, tighten restrictions on colonial commerce, and require the Americans to assume a greater share of the imperial tax burden. In response to Parliament’s abrupt change of colonial policy, the Americans began to question the constitutional basis of parliamentary statutes designed to impose a new economic relationship between the colonies and England. Reaffirming and at the same time reinterpreting their ancient rights and privileges, they turned in the final stages of resistance to thoughts about the nature of free government. In the end, they came reluctantly to the conclusion that secession was their only recourse.
It was thought in London that the new colonial policy was necessary because of economic conditions in England. British industry was rapidly advancing and manufacturers in the homeland were anxious to expand their markets and increase the flow of raw materials. Moreover, the Seven Years War between England and France, which ended in 1763, had left England in control of North America, but had also doubled the English national debt and greatly increased the tax burden of the English people. Already saddled with a system of monopoly that compelled them to purchase exclusively from England all the European articles they required, and to sell exclusively to England all their materials and productions, the Americans resisted these new reforms with increasing skill and determination. Their opposition laid the foundation for unification of the colonies, driving them reluctantly to the American War for Independence.
The responsibility for inaugurating the new colonial policy was placed in the hands of George Grenville, who became Prime Minister in the spring of 1763. Although the menace of the French and Indians on the western frontier had abated, Grenville persuaded Parliament to pass the Sugar Act (1764) and the Stamp Act (1765) for the announced purpose of “defending, protecting, and securing” the colonies. Complaints against the increased duties on sugar shipped to the colonies were mild compared to the commotion stirred up by the Stamp Act; for one of the underlying purposes of the Stamp Act was to establish the right of Parliament to tax the colonies. The actual revenue accruing from the purchase of stamps on newspapers, playing cards, legal documents, and various business instruments was relatively insignificant. What aroused the ire of the Americans was the imposition of a new and mischievous principle: that of raising a tax in the colonies for the treasury of England.
United in their opposition to the tax, the colonies, in their first effort at intercolonial union for resistance to British imperial authority, sent delegates to a Stamp Act Congress in New York which met on October 7, 1765. Representing nine colonies, the Congress drafted a bill of rights and a statement of colonial grievances based on the principle of “No Taxation Without Representation.” The Americans argued that Parliament had exceeded its authority in passing the Stamp Act because the colonies, not being represented in Parliament, could be taxed only by their own assemblies.
Parliament wisely repealed the Stamp Act on March 17, 1766; but it refused to disavow its new claim to power, and with the repeal it appended a Declaratory Act affirming its right to legislate for the colonies in all matters. The Americans were so overjoyed by repeal that they overlooked the objectionable principle embodied in the Act. The British, as Americans soon realized, had changed their stance but not their position.
In 1767, upon the recommendation of Charles Townshend, the new Chancellor of the Exchequer, a stubborn Parliament counterattacked with another series of statutes designed to implement the new colonial policy. Relying upon the transparent argument that Parliament, by repealing the Stamp Act, had renounced a direct taxation on the colonies but had reserved the right of indirect taxation, the supporters of the new plan imposed a duty on glass, tea, lead, and paper imported into the colonies. The American response was predictably hostile. No less objectionable to many colonials was a provision of the act authorizing courts to grant writs of assistance to enable British officials to search any house or ship suspected of harboring smuggled goods (James Otis had publicly opposed such writs as early as 1761, contending that they were unconstitutional). Other objectionable Townshend Acts included the establishment of a board of custom officials and an act suspending the New York assembly because it had failed to make satisfactory arrangements for the quartering of British troops stationed in the colony.
The controversy over the Townshend Acts centered on questions of Parliament’s constitutional powers. Chief among the American opponents was the able lawyer John Dickinson, who maintained in his widely circulated Letters of a Farmer in Pennsylvania that the Townshend Acts contravened established English constitutional principles. Resistance also took the form of a boycott by the merchants and some southern planters against the importation of British goods; and in Boston a clash between seven soldiers and a mob of townspeople, which resulted in the death of four citizens in the so-called Boston Massacre, aroused the people of Massachusetts to a fever of agitation.
Confronted with the fact that the Townshend Acts were a failure, both politically and economically, the ministry in London once again made a strategic withdrawal from the field of contention. The Townshend Duty Act was repealed in April 1770, except that the duty on tea was retained to save the principle that Parliament had the authority to tax the colonies. From that moment it was clear that the ministry, despite the folly of continuing the contest, was determined to subdue the colonies. Lord North, in fact, formally declared in Parliament that repeal of all the new taxes could not occur until the Americans were brought to the feet of Great Britain. By now the disposition to resistance had struck deep roots in every American colony. At first the Americans had only denied the right of Parliament to tax them; but the scope of their rebuttal had increased, by degrees. They began to question the authority of Parliament altogether.
The brief hiatus following the partial repeal of the Duty Act was broken in 1773 when Parliament enacted the Tea Act. The purpose of this ill-considered statute was to shore up the crumbling financial structure of the East India Company, and to establish a precedent to support England’s right to tax the colonies. Neither objective was achieved. American resistance against the plan was immediate and strong, highlighted by the famous Boston Tea Party. Seemingly indifferent to the integrity of the Americans, who were waging a war of first principles and were not motivated simply by economic considerations, the English mistakenly believed that the colonials would acquiesce in the modest import duty under the Act because it permitted them to purchase tea at half the price paid in London.
This miscalculation was compounded by British reprisals characterized by the colonials as the “Intolerable Acts,” which were passed by Parliament in 1774 to punish the obstreperous Bay Colony. The first of these, the Boston Port Act, closed the Boston harbor to nearly all trade until the citizens of Massachusetts paid the East India Company for the tea they had destroyed. The Massachusetts Government Act changed the colony’s royal charter by transforming the upper house of the assembly from an elective into an appointive body, and by restricting the right of self-government in the towns. Under the Administration of Justice Act, the Crown’s appointees in Massachusetts who were accused of capital offenses in the discharge of their official duties could be sent to England or other colonies for trial. A fourth measure, the Quartering of Troops Act, gave provincial governors the authority to requisition, with compensation to the owners, all inns, taverns, and unoccupied buildings needed for the proper housing of British troops stationed in the colonies. Not intended to be punitive, the Quebec Act, which among other things deprived Massachusetts, Connecticut, and Virginia of western land they claimed under the sea-to-sea clauses of their charters, was also regarded in America as one of the “Intolerable Acts.”
In support of the Bostonians, the Virginia House of Burgesses passed a resolution designating June 1, 1774 (the day the Boston Port Act was scheduled to take effect) as a day of fasting and prayer. Governor John Dunmore viewed this as an act of defiance against the authority of the Crown and promptly dissolved the assembly. Earlier, in 1773, Virginia had taken the lead as the first colony to establish committees of correspondence on an intercolonial basis. These promoted cooperation among the colonies in a more continuous manner than had the Stamp Act Congress. The Virginia legislators now took the greatest step of all the colonies toward united action. Meeting on May 27, 1774, in a rump session at Raleigh Tavern in Williamsburg, the dismissed Burgesses issued a call to the other colonies to send delegates to a continental congress in order to consult upon the common grievance.
A congress of some fifty-five deputies, representing every colony except Georgia, met in September and October of 1774 at Philadelphia and devised a plan of united action against the English government. In essence, the delegates reaffirmed the longstanding principle that each colony was substantially autonomous within the British empire; and to achieve that end they declared economic war on the mother country. The delegates unanimously resolved that Congress request all merchants in the several colonies to withhold the shipment of goods to Great Britain, and further agreed that after December 1, 1774, there would be no importation of goods from Great Britain, Ireland, or the West Indies unless American grievances were redressed. To enforce the ban on all commerce with the mother country, the Congress established a continental association of local communities; but a proposal to establish a central government of united colonies was rejected.
The Declaration and Resolves of the First Continental Congress reveals the state of political thought of American colonial leaders at this stage of their quest for liberty. The Declaration was the product of the “Committee for States Rights, Grievances and Means of Redress” that was appointed on September 7, 1774, “to state the rights of the colonies in general, the several instances in which these rights are violated or infringed, and the means most proper to be pursued for obtaining a restoration of them.” The committee consisted of two delegates from each colony (except Georgia), and included Richard Henry Lee of Virginia, John Jay of New York, John Rutledge of South Carolina, Edmund Pendleton of Virginia, William Livingston of New York, Roger Sherman of Connecticut, Joseph Galloway of Pennsylvania, and the two Adamses from Massachusetts.
A conciliatory tone of loyalty to the Crown, reflecting the conservatism of these reluctant rebels, pervades the document, despite the gravity of the charges it contains. Above all, the Declaration is a rudimentary statement of conflicting theories about the origin and nature of American freedom. In a single breath, the delegates affirmed their natural rights as men, their prescriptive rights as Englishmen, and their chartered rights as Americans. Thus they declared that, “by the immutable laws of nature, the principles of the English Constitution, and the several charters,” the American people were “entitled to life, liberty and property … all the rights, liberties, and immunities of free and natural born subjects within the realm of England … [and] to the common law of England.”
These sweeping assertions, it must be emphasized, are more the result of efforts by the committee to accommodate the opposing views of its members than of intellectual confusion. As John Adams later noted in one of his lively accounts of the first Congress, one of the major “Points which labored the most [was] whether We should recur to the Law of Nature, as well as to the British Constitution and our American Charters and Grants.” Richard Henry Lee, for example, said he “Can’t see why We should not lay our rights upon the broadest Bottom, the Ground of Nature.” John Jay insisted that “It is necessary to recur to the Law of Nature.” John Rutledge, on the other hand—joined by Joseph Galloway and James Duane of New York—argued that “Our Claims I think are well founded on the British Constitution, and not on the Law of Nature.” Adams discloses that he “was very strenuous for retaining and insisting on it [the Law of Nature], as a resource to which We might be driven by Parliament,” and this is the view that ultimately prevailed.
The rhetoric of the Declaration indicates that the members of the First Continental Congress earnestly believed that they were seeking merely a “restoration” of their established legal rights, and were not laying claim to new rights of a radical sort based on natural rights philosophy. Their assertion of rights based on the “law of nature,” in other words, was written in anticipation of Parliament’s rejection of their constitutional doctrines, more out of desperation than of solid conviction. Notwithstanding their reference to “the immutable laws of nature,” the focal points of their brief against Parliament were their established rights under the English Constitution, the common law, and their colonial charters.
There were other fundamental issues, equally important in connection with American political and constitutional development, dividing the delegates. Adams recalled that a second point of major disagreement in the committee “was what authority we should concede to Parliament: Whether we should deny the Authority of Parliament in all Cases: Whether we should allow any Authority to it, in our internal Affairs: or whether we should allow it to regulate the trade of the Empire, with or without any restrictions.” Rejecting the principle of legislative supremacy, they declared that the legislative authority of Parliament was limited by the higher law of the Constitution. The Intolerable Acts, the law establishing the board of commissioners, and the exercise of legislative power in the colonies by appointed councils, in violation of the principle “that the constituent branches of the legislature be independent of each other,” were, said the delegates, “dangerous” and “unconstitutional.” Proclaiming the “right of the people to participate in their legislative councils,” the delegates finally agreed that Parliament could regulate the external commerce of the colonies but could not levy a tax on them.
The Declaration also reveals an early commitment not only to representative government and a broadly based system of civil liberties, but also to bicameralism and, most significantly, to the overarching principle of the American Constitution—namely, that a constitution is a higher law, and legislative enactments in conflict with it are “unconstitutional” and unenforceable. Here in embryo, then, was the distinctly American doctrine of judicial review, the rule of interpretation adopted by the Supreme Court in the landmark decision of Marbury v. Madison (1803).
The First Continental Congress, we may now observe, stands as an important milestone in American constitutional development. Here, for the first time, political leaders from throughout the colonies—many of whom would later serve in the Constitutional Convention of 1787—met for an extended period of time to discuss basic principles of constitutional government. For many, it was the first time they had met face-to-face, and it was the beginning of a long and close relationship among the Founding Fathers. In 1787 there were forty-one surviving members of the First Continental Congress. Ten were elected to the Constitutional Convention. Richard Henry Lee, Patrick Henry, and Richard Caswell refused to serve, but the remaining seven—John Dickinson, William Livingston, Thomas Mifflin, George Read, John Rutledge, Roger Sherman, and George Washington—signed the Constitution and supported its ratification. In addition, twenty of the surviving members of the First Congress were elected to the State ratifying conventions of 1787–1788; most of them supported adoption.
On May 10, 1775, three weeks after the battles of Lexington and Concord, the Second Continental Congress met in Philadelphia to consider “the state of America” and prepare the nation for armed rebellion. One of the first orders of business was the selection of a commander-in-chief for the Continental army. A number of New Englanders favored Artemus Ward, who was in command of troops around Boston, but the southerners, fearful of New England’s imperial ambitions, successfully urged the unanimous election of George Washington. The Virginian reluctantly accepted, confiding to a friend that the “partiality of the Congress, added to some political motives, left me without choice.”
While the delegates maneuvered to gain support for their States’ “favorite sons” in the debate over the selection of Washington’s generals, the bloody Battle of Bunker Hill was fought on June 17. News reached Philadelphia on June 22, the same day Congress elected eight brigadier generals and voted to issue $2 million in paper money. The next day Washington left to take command of the army in Massachusetts, and on June 23 a committee was appointed to draw up a declaration for Washington to read to the troops at Cambridge. The Declaration of the Causes and Necessity of Taking up Arms of July 6, 1775, is the product of that committee.
Although probably all of the members of the Second Continental Congress were agreed that military resistance against Great Britain was necessary for the protection of American rights, they were far from unanimous with respect to the ends sought. One group of delegates, led by John Dickinson, favored reconciliation, still hoping that the Americans might remain in the British Empire. There were others, however, who agreed with the Lees of Virginia and the Adamses of Massachusetts that reconciliation was now hopeless. They too shied from the thought of independence, but favored a more aggressive stance against the mother country.
The committee, consisting of Benjamin Franklin, John Jay, Robert Livingston, Thomas Jefferson, John Dickinson, and Thomas Johnson of Maryland, reflected these differing attitudes. Two versions of the declaration were considered, one offered by Jefferson and the other, more conciliatory in tone, by Dickinson. Largely the work of these two men, the final draft served as a compromise between these factions of the Congress, while at the same time pointing the way toward the Declaration of Independence. Considering the nature and extent of this protracted struggle for liberty, with American blood already spilled on the battlefield and a large-scale military conflict in the offing, the Declaration of the Causes and Necessity of Taking up Arms is a tribute to American moderation and restraint in the revolutionary period.
Their quarrel was with Parliament, which, as they rightly complained, had ignored their earlier petitions. And instead of acting in a conciliatory manner, the Lords and Commoners seemed bent on “enslaving the colonies.” Appealing to world opinion, the Americans listed their grievances, which included unlawful usurpations of power rightfully belonging to the colonial assemblies, violations of such basic liberties as trial by jury, and invasions by British troops who “have butchered our countrymen,” committed arson, and “seized our ships.” They denied, however, any intention “of separating from Great Britain and establishing separate States.” In words written by Jefferson, they eloquently declared, “before God and the world,” that “the arms we have been compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverance, employ for the preservation of our liberties; being with one mind resolved to die freemen rather than to live slaves.” As a stubborn Parliament was quick to learn, the Americans meant what they said.
The Declaration of Independence
Prodded by Thomas Paine’s widely circulated pamphlet Common Sense, which passionately stated the case for permanent separation and convinced Americans at last that British officials were determined to subdue the colonies at any cost, the American people advanced step by step toward a final break. On July 4, 1776, they announced their decision to leave the empire. Although John Adams and Benjamin Franklin served on the committee that was charged with the responsibility of drafting a statement, the principal author of the Declaration of Independence was Thomas Jefferson.
The document is divided into two parts. The first offered a philosophical justification for secession, based on the theory that all men are entitled to certain basic rights, that the purpose of government is to protect those rights, and that the people have the right to abolish that government if it fails to fulfill its obligations. “We hold these truths to be self-evident,” wrote Jefferson,
that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are life, liberty and the pursuit of Happiness. That to serve these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the right of the people to alter or abolish it.
In the second part of the document, Jefferson presented a long list of grievances against the King and Parliament, including those contained in the 1774 Declaration, to demonstrate the many ways in which the government had endeavored to establish “an absolute Tyranny over those States.” The document ended with an appeal to God “for the rectitude of our intentions” and a solemn declaration that the thirteen colonies were now “Free and Independent States … absolved from all allegiance to the Crown.” Fifty-six delegates signed the document, asserting that “we mutually pledge to each other our Lives, our Fortunes and our sacred Honor” to defend the country at any cost.
The Declaration of Independence is one of the most famous documents in the history of the world and from its inception has exerted a powerful influence on mankind. It has inspired revolutionary leaders abroad and has become such a basic ingredient of the American political tradition as to be regarded by some as almost part of the Constitution itself. Yet it has also been a source of profound disagreement, an object of continuing interest and debate, and in some respects an enigma. This may be attributed in large measure to the fact that the first part of the Declaration, the preamble, which has been the cause of these disputes, is obscured by vague and ambiguous language that is susceptible to different interpretations. As a result, there has always been some uncertainty about the exact origin and nature of the rights proclaimed. It is no small irony that Jefferson Davis, the President of the Confederacy, and Abraham Lincoln, President of the United States, both found support for their positions in the Declaration of Independence, Davis claiming that the Confederate States had a right to secede and declare their independence, and Lincoln asserting that slavery was incompatible with the principles of the Declaration.
As we noted in our examination of the Declaration and Resolves of 1774, the colonists experienced difficulty and disagreement in deciding whether to base their rights on the laws of nature, the common law and the English constitution, or their colonial charters. In the end, they opted to muddle their way through the problem by claiming that Parliament had abridged their natural rights, their common law rights, and their chartered or prescriptive rights. This confusion or inability to agree among themselves was carried over to the Declaration of Independence two years later. Thus in the preamble of the document Jefferson presented an argument for the right of revolution and secession based on the philosophy of natural rights; but when he turned to an enumeration of rights that had been abridged, he mentioned only constitutional, common law, and charter rights.
One right prominently mentioned, for example, is the right of trial by jury. This is a common law right, of course, that has never been regarded as universal in nature and is not even recognized under the Civil Law. Is the reference in the document to the “laws of nature” anything more than political rhetoric? What did the colonists mean when they asserted that “all men are created equal” and that they are endowed by their Creator with “certain” unalienable rights?
Puzzled by these anomalies, later generations called upon Jefferson after he had retired to Monticello to clarify the meaning of the document. Disclaiming any originality of thought, and seeing no inconsistencies, Jefferson told one correspondent in 1825 that the purpose of the Declaration was “not to find out new principles, or new arguments never before thought of … but to place before mankind the common sense of the subject.” Jefferson was, in fact, accused of plagiarizing the views of others. The preamble of the Declaration of Independence bears a striking resemblance, for example, to the first part of the Virginia Bill of Rights, which George Mason wrote almost a month before the Declaration appeared. John Adams, who wrote the Declaration and Resolves of 1774, and the Resolution for Independence of May 1776, thought that the Declaration of Independence was founded on these two documents. On the other hand, Richard Henry Lee accused Jefferson of copying from Locke’s Second Treatise, and another charged that he had simply lifted the wording from one of James Otis’s pamphlets. Jefferson denied that he had relied on any single book or pamphlet, however, and insisted that the thoughts contained in the Declaration were derived from his general reading and knowledge of government and political philosophy. The Declaration of Independence, he said, “was intended to be an expression of the American mind. … All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversations, in letters, printed essays or in the elementary books of public rights, as Aristotle, Cicero, Locke, Sidney &c.”
But this explanation serves only to increase the confusion. Modern natural rights philosophy, as represented in the writings of Locke, is a rejection of classical political thought and the traditional natural law philosophy. Neither Aristotle nor Cicero subscribed to a natural rights theory, and Aristotle’s teaching on the origin of government is contrary to Locke’s Second Treatise.
To understand the natural rights philosophy of the Declaration of Independence, it is essential that we pause to compare and contrast it with the natural law philosophy. We begin with Aristotle. According to Aristotle, man is by nature a political animal. It is his nature to live with others and to establish the family unit. This gives rise to groups of families and household communities, which unite for mutual protection and to satisfy human wants and needs. These in turn join together to create the city-state. This is the origin of civil society. Government, then, is natural to man. The study of history and anthropology, we should note, confirms Aristotle’s view. There is no evidence that mankind has ever lived in complete isolation. “A man alone,” it is said, “is either a saint or a devil,” and not of this world.
Aristotle was part of what is called the natural law tradition in Western thought, which began with the ancient Greeks. The idea of natural law stems from the belief that there is a higher law governing political rulers and the affairs of mankind which emanates from God. This higher law, said Aristotle, is knowable through reason. St. Thomas Aquinas, the thirteenth-century theologian who adapted Aristotle’s teachings to Christian beliefs, wrote that revelation, that is, God’s word as revealed through scripture, supplemented reason as a source of understanding the natural law.
What, in substance, is the natural law? By natural law we mean those principles which are inherent in man’s nature as a rational, moral, and social being, and which cannot be casually ignored. The term is confusing at first because it suggests the laws of physical nature, such as the laws of chemistry or physics. Natural law refers, however, not to physical but to human nature. We mean by this term not law which has been enacted, but the law which has been, or may be, discovered by man’s reason and experience. In essence, it is a system of ethics for governing the political and legal affairs of man. It insists that there are universal truths, such as justice, and that such truths are knowable through reason and revelation; and that to violate them is to contravene the natural law. In a famous passage in De Republica, Cicero described the natural law as “true law”:
True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by the Senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one external and unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge.
Constitutionalism, it should be observed, is a product of this natural law idea that there are certain unalterable truths, and that kings, parliaments, and judges as well as the citizens are and should be governed by them.
But if there is such a thing as a natural law of justice, what explains the fact that the meaning of justice is not exactly the same in all societies? Since the idea of liberty varies, in one degree or another, from one civilization to the next, how can there be only one objective standard of liberty? When the institution of slavery was debated in the United States in the early nineteenth century, some Americans argued that slavery was just and others insisted that it was unjust. Which view is correct? Philosophers have pondered these cultural diversities and differences of opinion for many years. Some have contended that such concepts as liberty and justice are illusory and mean whatever each society chooses to call them. A school of thought known as positivism, founded in the nineteenth century by a French philosopher named Auguste Comte, contended, for example, that the only truths were scientific truths, as determined by the scientific or empirical method. Since we cannot prove in a laboratory what liberty or justice means, suggested Comte, they have no meaning. Applying such assumptions to laws, the legal positivists asserted that the whole idea of natural law was a myth. A law is a law if it has passed the legislature, they said, because we can prove that it did or did not pass. But we cannot scientifically prove that the law protects liberty or justice because we don’t have any way of knowing what these terms mean. Judges, therefore, should treat all laws the same, the only test of legitimacy being whether the law was formally enacted by the rules prescribed. “Who is to say,” said the positivist, “whether a law is good or bad? Who is to say what is right or wrong? One man’s opinion is as good as the next man’s.”
The natural law philosophers rejected this theory of knowledge. It is true, they conceded, that ideas about liberty and justice may vary. But the opinion of one, of many, or even the opinion of all, is not the test. A majority may even declare that a particular ruler, or law, or individual act, is just. But that does not make it so. Whole societies have committed murder and atrocity in the name of justice. What is legally just may not be what is naturally just. The test of truth, said the natural law thinkers, is not what people perceive it to be, or what they call it. There is, they insisted, a higher, more objective standard. Such qualities (or values) as honesty, integrity, courage, beauty, and of course liberty and justice, cannot be scientifically demonstrated; but this is not to say we are wholly incapable of understanding them and are totally ignorant of their meaning. Thus through reason and revelation, contended the natural law philosophers, it is possible for the human intellect to understand the natural law—if not in its entirety, then at least in part. At bottom, the doctrine of natural law is basically an assertion that the law is a part of ethics.
The idea that individuals uniformly possess certain “rights” against the state did not form a part of the natural law philosophy. There are certain aspects of human nature that are common to all; but no two individuals are exactly the same, and the differences among them are often considerable. It was Aristotle’s view, for example, that entitlements differ from one individual to the next, according to each person’s nature. Aristotle even maintained that slavery for some individuals is natural because some people are, by nature, incapable of being educated to virtue and are not suited to be masters. The notion that all men have “natural” or equal rights to life, liberty, and property (or to the pursuit of happiness) is foreign to Aristotle’s teachings. The whole emphasis of traditional natural law, in fact, is not on rights, but on man’s natural duties and obligations—to God and to his family, community, and country.
In the writings of John Locke and other natural rights thinkers, we encounter a different view of the origin and purpose of government. The true natural state of man, argued Locke in his Second Treatise, is not civil society, as Aristotle said, but the state of nature. There was a time, he suggested, when all men lived not in family units or villages but in a state of nature. Roaming the plains and forests at will, each man was free to come and go as he pleased, without restraint, and to enjoy “life, liberty and estate (property).” These were the rights, said Locke, that each man exercised in the state of nature, and these rights were therefore the “natural rights” of man.
But life in the state of nature was not idyllic. Thomas Hobbes, a seventeenth-century natural rights philosopher, in his work Leviathan (1651), reasoned that life in the state of nature must have been “nasty, brutish, and short.” For Locke, it was more of an inconvenience than a state of misery. Whatever the condition of man in this state of nature, his natural rights were not secure, and he found it necessary, therefore, to leave this existence in order to protect these rights. According to both Hobbes and Locke (and later Rousseau), this was accomplished by means of a social contract—that is, man contracted out of the state of nature to create society. How this was accomplished, and how there could be an act of government before government was actually created, Locke did not say. Having now formed society by a social contract, the members then entered into a political contract with their rulers to establish a government. By the terms of this second contract, the subjects agreed to obey the government and the government in turn agreed to protect the natural rights of each individual. Should the government fail to provide this protection, the members of society had the right to replace the old government with a new one, thereby exercising their “right” of revolution. Locke’s theory of natural law, in other words, was not a theory of natural law at all, but a theory of natural rights.
All of this “state of nature” business is pure fiction, of course, but there were some who talked glibly about “natural rights” in the founding period and believed they possessed them. Like most Americans of his day, Jefferson failed to grasp the inherent contradictions between natural law and natural rights doctrines, and he therefore saw no inconsistency between Aristotle and Locke. It would be the task of later generations to sort out the confusing and sometimes conflicting precedents that had laid the foundation of rights in America. There can be no doubt, however, that some Americans thought they had been endowed by their Creator with so-called natural rights and acted upon that assumption.
But how do we distinguish desires from rights? If there is any basis to the natural rights claim—and some contemporary scholars say there is—it is in spite of Locke’s Second Treatise, not because of it. The argument has been made, for example, that individuals in all societies (but not all individuals in all societies) by nature and instinct desire at least some personal freedom. From this observation it might be concluded that freedom is a “natural right.” But it would be “natural” because it conformed to the nature of man in organized society, not because it sprang from an anarchical and mythical state of nature.
The provision of the Declaration of Independence that has aroused the greatest controversy is Jefferson’s statement “that all men are created equal.” This was a poor choice of words, for it is obvious that the phrase does not mean what it says. Neither Jefferson nor any other member of the Continental Congress seriously believed that all people are equal. “In what are they created equal?” inquired a critical Englishman who read the Declaration. “Is it in size, strength, understanding, figure, moral or civil accomplishments, or situation of life?” The Americans, he asserted, “have introduced their self-evident truth, either through ignorance, or by design, with a self-evident falsehood, since I will defy any American rebel, or any of their patriotic retainers here in England, to point out to me any two men throughout the whole world of whom it may with truth be said, that they are equal.”
Nor could Jefferson have possibly had in mind the type of “egalité” proclaimed by the French revolutionaries a decade later—that is, a radical leveling of society to a common stratum through government imposition of political, social, and economic equality. By the word “equal,” the gentlemen freeholders who signed the Declaration of Independence did not mean a massive redistribution of the wealth, the eradication of all social distinctions, or universal suffrage. Moreover, the Americans could hardly boast that they had extended equal treatment to their fellow American Loyalists. “If the right of pursuing happiness be unalienable (not transferable),” argued John Lind, a London barrister, “how is it that so many others of their fellow-citizens are by the same injustice and violence made miserable, their fortunes ruined, their persons banished and driven from their friends and families?”
A more plausible interpretation of what the members of the Continental Congress intended by the assertion that “all men are created equal” would be to suggest that they meant the American people, as a nation, were entitled to the same rights as Englishmen. This is certainly what they believed, but the words do not very adequately convey this understanding either. If that is what they thought, why did they not declare simply that “all men are entitled to equal rights” or that “all English citizens are created equal”? We are left with the cryptic remark of Rufus Choate of Massachusetts, one of America’s most eminent lawyers in the early nineteenth century, who dismissed the famous proclamation as a hodgepodge of “glittering and high-sounding generalities of natural right.”
The Preamble of the Declaration of Independence, it would seem, embodies a theory of government that does not withstand the test of modern analysis. There is no denying that it contains sweeping propositions of doubtful validity. It must ever be remembered, however, that in politics what may seem true in theory is false in fact, and that the reverse is equally valid: political doctrines, though philosophically suspect, sometimes have a life of their own. A more generous reading of the Declaration of Independence would be to look upon it for what it was, what it became, and what its authors may or may not have intended: as a political manifesto, an impassional plea, or an overstatement, we might say, in defense of certain ideals. Had the colonists rested their case on the English Constitution, the common law, and their colonial charters alone, they would have made essentially the same claims in the preamble that they made in the body of the document. The weakness of their philosophical argument, in other words, should not be allowed to obscure or detract from the strength of their political and legal case against the British. They did not need to prove the validity of the natural rights theory in order to validate their claim that they were entitled to certain prescriptive rights they had inherited from their ancestors.
The rhetoric of the Declaration served to inspire Europeans battling privilege and autocratic government, and in due course the ideal of equal rights inherent in the Declaration made slavery increasingly objectionable in the United States. In the famous Lincoln-Douglas debates of 1858, Stephen Douglas stated his belief “that the Declaration of Independence, in the words ‘all men are created equal,’ was intended to allude only to the people of the United States, to men of European birth or descent, being white men, that they were created equal, and hence that Great Britain had no right to deprive them of their political and religious privileges; but the signers of that paper did not intend to include the Indian or the Negro in that declaration, for if they had would they not have been bound to abolish slavery in every State and colony from that day? Remember too that at the time the Declaration was put forth every one of the thirteen colonies were slaveholding colonies; every man who signed that Declaration represented slaveholding constituents.”
Lincoln did not deny these facts. But he insisted nevertheless that all of the slaveholding communities “greatly deplored the evil.” This is why “they placed a provision in the Constitution which they supposed would gradually remove the disease by cutting off its source. This was the abolition of the slave trade.” Thus, said Lincoln, it may be asked: “if slavery had been a good thing, would the Fathers of the Republic have taken a step calculated to diminish its beneficent influences among themselves?” The Declaration, he contended, stands for the principle of equal justice, and if exceptions are made, “where will it stop?” It was meant by the Founders to serve as “a beacon to guide their children and their children’s children” in the interminable struggle against special interests and privilege, in the hope that “their posterity might look up again to the Declaration of Independence and take courage to renew the battle which their fathers began—so that truth, and justice, and mercy, and all the humane and Christian virtues might not be extinguished from the land.” In large measure, the commitment to equality that Lincoln found in the Declaration of Independence was essentially a moral equality, or the Christian doctrine that everyone is equal in the eyes of God. Lincoln’s interpretation prevailed, and it was the preamble of the Declaration of Independence which elected him to the presidency and produced the Thirteenth Amendment.
In 1776, the slave trade was universally accepted by civilized as well as barbarous nations. Looking back, we see that the Americans, like their European counterparts, only gradually came to appreciate the evils of slavery. Despite the great outpouring of philosophical tracts in defense of liberty, few Enlightenment thinkers called for an immediate end to slavery, and some ignored it altogether. The name of John Locke and the doctrine of natural rights are commonly associated with the Declaration of Independence, as we have seen, and some have argued that his imprint is evident in the preamble of that great document. Yet it is a melancholy fact that Locke was an investor in the Royal African Company and clearly regarded Negro slavery as a justifiable institution. In his Second Treatise, he spoke of slavery as “vile and miserable,” but as the author of the Fundamental Constitutions of Carolina, which were promulgated in 1669 for the governance of the Carolina colonies, Locke stipulated that “every freeman of Carolina shall have absolute power and authority over his negro slaves.” Montesquieu attacked the traditional justifications for slavery, however, and Burke drafted an elaborate code to make both the African trade and colonial slavery more humane. The Quakers, followed by other Christian sects, came to the view that slaveholding was a sin against God, no matter how benevolent or charitable. Many leaders of both the American Revolution and the Abolitionist Movement, it is worthy of remarking, were members of the clergy.
The American Revolution probably served as a catalyst for anti-slavery sentiment by awakening a deeper appreciation of individual liberty. The debate with England produced a great body of literature on the meaning of freedom and the rights of Englishmen; and it stimulated interest in older works on political thought, history, and law that helped to justify the American cause. Above all, the case against the British rested on the thesis that Americans were entitled to the same rights as Englishmen at home. This demand for equal rights was the main thrust of the Declaration of Independence, which laid the foundation for the argument against slavery. Indeed, it was the Declaration of Independence, not the Constitution or the Bill of Rights, around which many opponents of slavery rallied for support in the nineteenth century. Beginning in the 1830s, some Abolitionist leaders condemned the Constitution as a “covenant with death” because, they said, it protected and perpetuated the slavery system. The Constitution, they charged, had subverted the ideals of the Declaration of Independence. At an anti-slavery rally in Massachusetts in 1854, the Abolitionist leader, William Lloyd Garrison, burned a copy of the Constitution before an angry crowd that had gathered to protest the capture of a fugitive slave. “An agreement with hell,” he called it. “So perish all compromise with tyranny,” he cried out as the document went up in flames. Other anti-slavery leaders contended that the alleged contradiction between the Declaration of Independence and the Constitution as depicted by some Abolitionists was actually a misreading of the documents. Slavery had already been abolished by the Declaration of Independence, they reasoned, and the Constitution was being manipulated by politicians to keep slavery in place.
If in their relations with Great Britain the Americans had a right to equal rights, it seemed to follow, said later generations, that in their relations with each other, all of the American people had a right to equal rights. Such, in fact, was the very basis of the principle of equality before the law—although in 1776 our understanding of this aspect of rule of law was rather muddled and confused. Even as the colonial patriots paraded through the streets of Boston, Philadelphia, and Charleston, however, and raised on high their proclamations of liberty, there was an inherent contradiction that suggested hypocrisy in the minds of some Tories. Here was a Declaration of Independence written by Thomas Jefferson, a slave owner. Here were thirteen colonies, all of them legally recognizing slavery, declaring their love of freedom. “How is it,” quipped the great English writer Samuel Johnson, “that we hear the loudest yelps for liberty among the drivers of negroes?” That slaveholders should be fighting for their freedom in the name of the rights of man was indeed a paradox, and with each passing generation public awareness of the inconsistency between the American ideal of equal rights and the American practice of slavery became ever more pronounced. Yet the English were hardly any more intolerant of slavery than the Americans. Before the American Revolution, approximately one-third of the British merchant fleet was engaged in transporting fifty thousand Negroes a year to the New World. Parliament did not abolish slavery in the English colonies until 1833. It would be erroneous to conclude from this, however, that the English and the Americans, particularly those who participated in the writing and adoption of the Declaration of Independence, were insincere or hypocritical about their declarations of liberty. The growth of freedom in Anglo-America, it must be remembered, came about gradually. It began with the struggle between the King and the English nobility and trickled down to other classes, each claiming rights and privileges that were previously enjoyed only by the few. In 1776, this evolutionary process was still in its infancy, and the notion that all persons were entitled to the same rights was simply inconceivable to the average freeholder. The freemen saw their task as protecting their hard-fought rights, not creating new rights for others. Granting full rights of citizenship to women, to one’s slaves and bonded servants, to Indians, to new immigrants speaking a foreign tongue, or to those without property was regarded as dangerous and contrary to the best interests of society. The democracy they practiced was limited to the ruling class, which included most white males, but it would be another century or more before all adults were part of that class and were participating freely in the democratic process.
It is interesting to note that the original Constitution of 1787 contained no provision guaranteeing equal rights. Nor did the Bill of Rights. To a degree, it is implicit in the Thirteenth Amendment abolishing slavery; but it appeared explicitly for the first time in the Equal Protection Clause of the Fourteenth Amendment. In a way, then, the Constitution has been amended by the Preamble of the Declaration of Independence.
There are different kinds of equality, as we have observed, however, and it is important to understand the distinctions among them from a constitutional standpoint. Some forms of equality are clearly compatible with individual liberty, equality before the law or equal rights being the most obvious. In this category we would also want to include equality of opportunity and the Judeo-Christian concept of moral equality based on the doctrine of original sin. These forms of equality are generally consistent with the ideal of individual liberty because they may be attained without coercion. No one is forced to act against his will, and no one is deprived of his earthly possessions, his earnings, his job and occupation, or his status in society, if the law is applied equally to all, and if all are given an opportunity to make their own way and carry out their own plans. Nor do these forms of equality conflict with any of the basic principles of the Constitution.
If an individual is free to participate in the political process by voting in an election or running for office, he possesses political liberty. If this freedom is exercised by all or most of the adult population, there is also political equality. This form of equality does not entail the use of government coercion. No one is forced to vote and the act of voting does not force others to act against their will. Political equality is therefore another form of equality that is compatible with individual liberty. Political liberty, to put it another way, is an important means to individual liberty, and the broader the franchise the greater the degree of political equality. There does not seem to be much support for political equality in the Declaration of Independence, however, in view of the widespread acceptance of a limited suffrage in 1776. Certainly less than half of the adult population enjoyed political liberty when the Declaration of Independence was written, and it would be inaccurate to interpret the document as a call for an expanded suffrage. The Americans demanded the same rights as Englishmen, not the right to vote. Between 1800 and 1860, virtually every State constitution adopted in 1776 was amended or revised to allow for an expanded electorate. The only exception to this general trend toward democratization was the abolition of voting privileges for free Negroes in Maryland, North Carolina, and Virginia as a result of increasing unrest over the slavery issue. This push for more democracy in the American political process, however, was largely independent of the anti-slavery movement that sprang from the Declaration of Independence. To the extent the Declaration affirmed the principle of political equality, it was a demand by the American people that they be given the same political rights collectively as other British citizens, not that each American be granted political liberty individually.
Social and economic equality, on the other hand, finds no support in the Constitution or in the political tradition that grew out of the Declaration of Independence. In 1776, as is true today, American society was very much diversified, and inequalities respecting wealth, property ownership, education, social status, and the like were part of the natural order. To reduce the entire American population to a single class of people, devoid of all social and economic distinctions, would have required massive and interminable coercion, resulting in a loss of individual liberty. Such drastic measures were never contemplated by those who wrote and approved the founding documents, and succeeding generations of Americans have traditionally rejected egalitarianism of this sort as basically inconsistent with personal freedom. By asserting that “all men are created equal,” the Americans did not have in mind the French idea of making them equal by restructuring society, and the many differences and distinctions that existed in colonial society were essentially left intact after independence was achieved.
What, then, was the legacy of the Declaration of Independence, and in what ways did it contribute to the development of liberty, order, and justice under the Constitution? At the risk of oversimplification, we may conclude that the Declaration of Independence achieved two immediate goals. The first, as represented by the preamble, was a philosophical appeal resting on the claim of equal rights and the republican principle of government by consent. The second, as seen in the text of the Declaration, was a constitutional argument that Americans were entitled to the rights of Englishmen, and that those enumerated had been abridged by the King-in-Parliament. These included the right of trial by jury, the right of self-government, the right of taxation by consent, and the right against quartering troops in private households. These and other legally recognized rights asserted in the Declaration found expression in the first State constitutions and bills of rights and in the Federal Constitution and Bill of Rights.
As reinterpreted by the descendants of the Founding Fathers, the preamble of the Declaration became a two-edged sword. In the North it came to embody the ideal of equality before the law or equal rights for all Americans, whatever their race or color, and thus served as a springboard for the anti-slavery movement. In the South, however, the preamble was invoked to support secession, the theory being that the States in 1861, as in 1776, had a fundamental or natural right “to change their form of government and institute a new government, whenever necessary for their safety and happiness.” With the military defeat of the confederacy, this ceased to play an important role in constitutional development. Beginning with the Thirteenth Amendment, the rhetoric of the preamble, seeming to affirm the principle of equal rights, became the dominant force, and over the years the Declaration of Independence has come to symbolize opposition to both slavery and racial discrimination. Beyond this, however, the influence of the Declaration from a constitutional standpoint is more difficult to ascertain. The Declaration offers little guidance on how or in what ways governments ought to be built and provides little insight into the workings of the American constitutional system. The Declaration, after all, was a proclamation calling for independence, stating the grounds for separation, not a manual or design for a new political system.
The Rights Proclaimed
The common theme of the various declarations issued by the Continental Congress between 1774 and 1776 was the claim of equal rights, the argument being that Americans were entitled to the same rights as Englishmen. These rights, the Americans argued, were basically inherited rights, derived from the English Constitution and the great charters of liberty, the English common law, and colonial charters. Nature was another source of rights—“the right to life, liberty, and property”—but to suggest that Americans were motivated principally by a natural right theory is to overstate the importance of John Locke and natural rights doctrines. The controversy with Great Britain centered mainly on legally established constitutional rights, not abstract philosophical rights. As an authoritative source of rights, nature was mentioned either as an alternative source or as a rhetorical device.
The first official list of claimed rights appeared in Patrick Henry’s famous Resolves, which the Virginia House of Burgesses adopted in 1765. They were passed in response to the Stamp Act and were repeated again and again in other State assemblies and in the Continental Congress down to the outbreak of the Revolution. Henry argued that the English had violated three rights. The first was the right of equality between the American and European subjects of George III. The colonists, said the Virginia Resolves, were entitled to “all the liberties, privileges, franchises, and immunities that have at any time been held, enjoyed, and possessed by the people of Great Britain.” The second English right asserted was the right to be taxed only by representatives of one’s choosing. And the third, closely related to the second, was government by consent: “the inestimable right of being governed by such laws, respecting their internal polity and taxation, as are derived from their own consent.”
The most comprehensive statement of colonial privileges made during the revolutionary period appeared in the Declaration of Rights of 1774. Whereas Henry’s resolves were concerned with the single issue of internal taxation, the Declaration of 1774 listed nearly all of the rights Americans had been claiming since the passage of the Stamp Act. Nine rights were identified: (1) the right to “life, liberty and property,” which the colonists never “ceded to any sovereign power whatever”; (2) the right to equal rights; (3) the right of representation; (4) common law rights; (5) trial by jury; (6) rights under English statutes that were in force at the time of colonization; (7) the right to petition, the House of Commons having refused to receive colonial petitions; (8) the right to be free from standing armies unless legislative consent had been granted; and (9) the right to free government, which Parliament had abridged in several colonies by conferring legislative power on councils appointed by the Crown.
The Americans claimed other rights, of course, but many of these were seldom mentioned because they were not part of the dispute with England. Freedom of the press and the free exercise of religion, for example, did not enter into the debate, although these were rights much valued by the colonists. Although we no longer think of security as a “right,” the colonists thought that security, especially security of property, was one of the most important guarantees of the English Constitution. “The absolute rights of Englishmen,” wrote James Otis on behalf of the Massachusetts House of Representatives, “are the rights of personal security, personal liberty, and of private property.” John Dickinson contended that “Men cannot be happy, without freedom; nor free, without security of property; nor so secure, unless the sole power to dispose of it be lodged in themselves.”
In essence, however, the quarrels between Parliament and the American assemblies over the nature and scope of individual rights were symptomatic of a more fundamental disagreement: the meaning of the English Constitution and of constitutional government. The Constitution as the Americans understood it was the old English Constitution of customary powers, in which inherited and inherent rights were protected against the arbitrary capriciousness of government power. The Constitution as London viewed it was a modernized British Constitution—the emerging constitution of the nineteenth century—of sovereign command and unchecked parliamentary supremacy. The American dilemma was not simply that Parliament had denied certain rights, but Parliament’s claim that it had the right to define them and impliedly to deny them at its pleasure. The real issue was sovereignty. “A paltry tax upon tea, a particular insult, a single act of violence or sedition,” a member of the House of Lords wisely noted, “was not the true ground of the present dispute. It was not this tax, nor that Act, nor a redress of a particular grievance. The great question in issue is, the supremacy of this country and the subordinate dependence of America.”
If Parliament was supreme, and free to revise the Constitution at will, how were American rights to be protected? Incredibly, only one member of Parliament ventured a solution during this great upheaval. “It was for liberty they fought, for liberty they died,” said James Luttrell, a member of the House of Commons, in 1777. “An American Magna Charta is what they wisely contend for; not a Magna Charta to be taxed by strangers, a thousand leagues distant … but if constitutional freedom was secured to America every victory might then gain over some worthy friends to our cause.” But Luttrell’s proposal went unnoticed and was never debated. Perhaps it would not have resolved the problem anyway. Assuming that Parliament passed an American Magna Charta, what would have prevented a future Parliament from repealing it? Only fundamental law could guarantee the security of American rights; but a fundamental law is little more than an ordinary statute where a constitution is subject to parliamentary supremacy. As one constitutional historian put it, “American whigs began their resistance in 1765 in the belief that Parliament was acting unconstitutionally. They went to war in 1775 in the belief that they were fighting to defend the British Constitution, not rebelling against it; they were in fact doing both. They were defending the Constitution of limited government and of property in rights that had been the English Constitution. They were rebelling against the Constitution of arbitrary power that the British Constitution was about to become.” In sum, the colonies had no choice but to declare independence and establish their own constitutions if they wished to secure the rights they had enjoyed under the old constitution they loved and cherished.
The First State Constitutions, 1776–1783
The year 1776 marks the birth of the American nation. It also signals the birth of constitutional government in the United States and in the world at large. For this was the first time in the world’s history that a large group of communities—now thirteen independent and sovereign States—had begun the formation of their own governments under written constitutions. This was also the year in which the Articles of Confederation, our first national constitution of sorts, was written. Many of the colonial leaders who participated in the creation of these first constitutions—James Madison, George Mason, John Rutledge, Charles Pinckney, John Dickinson, Robert Morris, Benjamin Franklin, Gouverneur Morris, and others—would later meet together in Philadelphia to draft the Constitution of the United States. In these respects, the writing of these constitutions was a dress rehearsal for the Federal Convention of 1787 and a valuable experience in the art of constitution-making.
To a large extent, the main pillars of the new governments were adaptations of the old colonial forms. Yet the task of writing the State constitutions was formidable. The participants were novices at drafting a body of fundamental laws, and most were unfamiliar with the mechanics of constitutional government. Added to this, the nation was at war, and many of the best minds were absorbed in the affairs of the Continental Congress and the war effort. Many of the State constitutions that emerged from the first phase of this endeavor (1776–1777) were thus seriously flawed, and all contained structural imperfections and awkward phraseology requiring subsequent revision. On the whole, however, it was a remarkable achievement, and a number of constitutions lasted longer than even their authors expected. No doubt the most important factor leading to the surprising success of this first effort was the rejection in all of the States of radical and visionary schemes of government and the general acceptance of established constitutional principles and inherited rights. There was little about these constitutions that was truly revolutionary, other than the fact they were written.
Because of the important role he played in the Philadelphia Convention of 1787 and in the first Congress of 1789, James Madison has sometimes been called the “Father of the Constitution” and also the “Father of the Bill of Rights.” But to John Adams belongs the title “Father of American Constitutionalism.” Deeply read in political and legal theory and ancient history, he was the most knowledgeable constitutional lawyer in all of New England and perhaps in all of the colonies. When the great Tory statesman and humanist Viscount Bolingbroke died in 1751, his reputation suffered a sharp decline, notwithstanding Alexander Pope’s widely shared belief that Bolingbroke was one of the most brilliant thinkers England had ever known. “Who now reads Bolingbroke?” asked Burke. Jefferson read Bolingbroke and thought his style reached perfection. But John Adams could truthfully say he had read the works of Bolingbroke three times, especially The Idea of a Patriot King (1738). This was Bolingbroke’s much neglected repudiation of Machiavelli’s The Prince—in defense of political morality and limited constitutional government. Adams seems to have read every important work on government. His mastery of the great political classics was unequaled in the American colonies.
At a meeting in Philadelphia in the fall of 1775, Adams was persuaded by Richard Henry Lee of Virginia to put his constitutional ideas down on paper. Adams obliged his friend in the form of a letter outlining the main features for a constitution, and Lee carried it home to show others. It was soon widely read and distributed in Virginia. The scheme proposed by Adams was only a sketch, however, and he left the details for later consideration. He advocated the free choice of a House of Commons by the people, with the upper house chosen by the lower and the Governor appointed by both houses. The Governor’s powers were to be extensive, including a veto and command of the military. Adams also suggested that, when peace came, then would be the opportune time to have the people elect both the Governor and the members of the upper chamber.
Later that same year, Adams gave a fuller expression to these ideas in a pamphlet entitled “Thoughts on Government,” which was issued anonymously and widely distributed throughout the colonies. Adams’s reputation as a constitutional expert spread rapidly, and in January 1776 the North Carolina delegates in Philadelphia were authorized to seek his advice on State government. On May 10, 1776, the Congress approved Adams’s resolution calling upon all of the colonies that had not already done so to adopt new constitutions. Adams was also the driving force behind the constitution of his native State. Written in 1780 and largely the handiwork of Adams, the Massachusetts Constitution proved to be the best of the early State constitutions. It was the first to employ a true check and balance system.
Most of the early State constitutions were written under difficult conditions and in haste. This is especially true of the first two constitutions—those of New Hampshire and South Carolina. They were drafted in January and February respectively, six months before the Declaration of Independence was proclaimed, and were viewed at the time as temporary expedients that might later be withdrawn should England and the colonies reach an accord. Both constitutions lasted only a few years.
Virginia and New Jersey also drew up their constitutions before independence, but these constitutions were drafted under more favorable circumstances and were generally regarded at their inception as permanent instruments of government. Of the remaining nine States, Rhode Island and Connecticut decided to retain their charter governments, and Massachusetts elected to keep its charter temporarily. This left six States without a constitution: New York, Pennsylvania, Delaware, Maryland, North Carolina, and Georgia, all of which wrote their fundamental law after the Declaration of Independence. The whole process took sixteen months, beginning with New Hampshire’s rudimentary instrument in early 1776 and ending with New York’s more sophisticated product, which was adopted on April 20, 1777. That same year, Vermont drafted a Constitution, but the State was not admitted into the Union until 1790.
In no State was the new fundamental law the work of a specially elected constitutional convention; nor were any of these first State constitutions submitted to the people for approval. The first constitution submitted to a popular vote was the abortive Massachusetts Constitution of 1778, which was drafted by the legislature but later rejected by the people. The Massachusetts Constitution of 1780 became the first that was both prepared by the convention method and approved by the people. It thus stands out as the first written constitution resting on a thoroughly republican base, and in this respect it set the standard for the Federal and State constitutions that were to follow.
In the period between 1776 and 1783, four different procedures were followed for the creation of our first State constitutions:
(1) Constitutions framed by purely legislative bodies which had no express authority from the people to write a constitution and never submitted their handiwork to the people for approval. These were the constitutions of New Jersey, Virginia, and South Carolina, all of which were adopted in 1776. South Carolina adopted a second constitution in 1778.
(2) Constitutions framed by purely legislative bodies, but with express authority conferred upon them for this purpose by the people—without submission to the people for approval, however. These were the constitutions of New Hampshire, Delaware, Georgia, New York, and Vermont.
(3) Constitutions framed by purely legislative bodies but with express authority conferred upon them for this purpose by the people and formal or informal submission of the constitution to the people—Maryland, Pennsylvania, North Carolina, South Carolina (1778), and Massachusetts (1778). Among these, only Massachusetts formally submitted its constitution to the people.
(4) The framing of a constitution by a convention chosen for this purpose only, with the subsequent submission of the Constitution to the people for approval. These were the States of Massachusetts (1779–1780) and New Hampshire (1779–1783) in their second attempts at establishing an acceptable fundamental law.
Some of these early constitutions made important contributions to the art of government which the Framers of the American Constitution later adopted. Maryland’s constitution provided for the indirect election of the upper house. Here the electoral college, which Mason had suggested in Virginia, made its debut in American politics. The Constitution of New York was the first to provide for popular election of the Governor and to give the executive branch a reasonable degree of power and independence. Here was laid the foundation for the modern presidency under the American Constitution. And the Massachusetts Constitution of 1780, as we noted before, provided the model for a separation of powers based on a system of checks and balances. The Framers also incorporated this concept into the Constitution of 1787.
On the other hand, some of these first constitutions also contained major defects. In some ways, the Framers of the American Constitution profited as much from these mistakes as they did from the more successful efforts. No doubt the peculiar constitution of Pennsylvania was the worst of the lot and, above all, pointed out the risks of eccentricity and novelty. Two of the assembly’s prominent leaders were mathematics professors. Dominated by radicals, “not one-sixth of whom,” reported one observer, “has ever read a word upon constitutional topics,” the assembly threw aside the advice of John Adams and ignored its colonial charter. Benjamin Franklin presided over the debacle. Franklin was a man of many talents, but it would seem that political science was not one of them. The constitution of unbalanced government that emerged from these proceedings reflected several of his questionable political ideas, including a unicameral legislature and a plural executive. The legislature was a single chamber. The executive consisted of a council of thirteen whose president and vice president were chosen by the council and the all-powerful legislature. They were mere figureheads presiding over a council that was virtually powerless. Thus, there was neither a Governor nor an upper house. The most bizarre feature of the Pennsylvania constitution, however, was the provision prohibiting any change for the first seven years. Thereafter, and at seven-year intervals, a council of censors was to be elected to review the operation of government and inquire whether the constitution had been violated. If the censors thought an amendment was needed, they had the power to call a State convention. The constitution met with a storm of protest and was soon an object of ridicule and jest among the State’s more conservative citizens. Observers from other States shared these views and John Adams condemned the document as a sham. A member of Congress from North Carolina wrote home ridiculing the Pennsylvania Constitution as “a beast without a head.” The constitution so convulsed the State that the government was barely able to function for more than a decade. Franklin, however, was so pleased with the constitution that he carried a copy of it to France to show to Turgot, Condorcet, and other admirers. In 1790, the French Constituent Assembly made the disastrous decision to adopt the Pennsylvania plan for a unicameral legislature. That same year, Pennsylvania unceremoniously abandoned its 1776 constitution in favor of a new one modeled after the other State constitutions, with a bicameral legislature and an independent Governor.
The defects in other State constitutions were numerous and varied, and in some cases fatal. Remarkably, four of these first constitutions lasted more than half a century. Although the North Carolina constitution gave the Governor too little power, it lasted the longest—seventy-five years. New Jersey’s constitution—largely the work of two Presbyterian clergymen, Rev. Jacob Green and Dr. John Witherspoon, the noted theologian and President of Princeton college—remained in effect for sixty-eight years. Maryland’s well-balanced constitution, perhaps the most conservative from the standpoint of property qualifications for holding office, was singled out by Hamilton in Federalist No. 63 as among the best, and it lasted for sixty-five years. Virginia’s constitution, also generally regarded as one of the better achievements, lasted for fifty-four years. It was written by George Mason, who also drafted Virginia’s famous Declaration of Rights. The Charter of Connecticut served as the State’s constitution for forty-two years, and that of Rhode Island for no less than sixty-four. New York’s constitution, unfortunately marred by two innovating devices (a Council of Revision and a Council of Appointment), nevertheless escaped unscathed from a convention in 1801 and, though burdened with many deficiencies, managed to survive for forty-five years. Its principal architect was John Jay. The Massachusetts Constitution of 1780, by far the most successful of all the State constitutions, has been subjected over the years to numerous amendments, mostly dealing with the suffrage. Still in force, it is the oldest in the land, and stands today as a fitting tribute to the political genius of John Adams.
In general, our first constitutions contained three major weaknesses, all of which were known and avoided in the Philadelphia Convention of 1787. First, they all failed to provide for an adequate system of separation of powers. Most of them established three separate and distinct branches of government, with no overlapping personnel; but the men who drafted them thought in terms of a “pure” separation and did not understand the need for checks and balances. As a result, political power tended to concentrate in the legislatures, which in turn often ruled in an arbitrary manner, tyrannizing over the other branches and oppressing the people, particularly disfavored minority groups. Jefferson addressed the problem in his own State in his Notes on Virginia (1784). This concentration of government power in the popular assembly, he charged, “is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not a single one. One hundred and seventy-three despots [the number of the Virginia legislators] would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice—as little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of the government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”
Second, all of these first constitutions, with the exception of New York’s, failed to establish an independent executive. In most cases, governors were appointed by and answerable to the legislatures, and their powers were severely restricted. Even those governors who enjoyed a semblance of authority found it difficult to protect their office because they lacked sufficient means by which to check legislative encroachments.
Third, all of these first constitutions lacked a provision establishing the constitution as the supreme law. One factor contributing greatly to the problem of legislative supremacy in the period between 1776 and 1787 was the common assumption that legislators were the sole judges of their own constitutional powers. Too few lawyers of the day believed that a State court had the right to declare a statute invalid on the ground that it violated the State constitution.
Finally, it is worth noting that the constitutions of four States—New York, New Jersey, Virginia, and North Carolina—contained no express provisions providing for their amendment. The assumption seemed to be that such provisions were unnecessary since the people were thought to have the sovereign right to change their form of government. How they were to exercise this right, and what the procedures would be, remained a mystery. In two States, Maryland and Georgia, changes in the constitution were expressly authorized through the legislature only. The constitutions of Delaware and South Carolina authorized two methods of amendment—through the legislature and by convention. Massachusetts and New Hampshire, on the other hand, specified the convention method only. The means by which the people might change their constitution thus varied from one State to the next, and in more than one State this basic ingredient of the republican principle was either neglected or compromised.
Not all of the earliest constitutions contained bills of rights, but the examples set by such States as Virginia, Pennsylvania, and Massachusetts set the trend for future constitutions. The Virginia Declaration of Rights, drafted by George Mason, was the most widely hailed and served as the favored model for the rest of the nation. The provisions of this Declaration (and the other bills of rights) may be traced to Magna Charta, the Petition of Right, and the English Bill of Rights. It set forth the usual requirements regarding trial by jury, cruel and unusual punishments, search warrants, freedom of the press, and the subordination of the military to civil government. Separation of Powers was also listed as a right of the people, and it was further stipulated that all men who could demonstrate that they had a permanent common interest with the community—that is, were property owners—should be given access to the ballot. Another important provision guaranteed freedom of religion. This was added at the insistence of Patrick Henry and James Madison.
Like the Declaration of Independence that Jefferson wrote shortly thereafter, the Virginia Declaration of Rights asserted that all authority is derived from the people, who have the inalienable right to reform the government if it fails to provide for their safety and happiness. As we noted earlier, however, “the people” of Virginia had not authorized the assembly to write either a new constitution or a declaration of rights, and the documents were not even submitted for popular approval. Moreover, the Virginia legislature represented the extreme opposite of the “one-person, one-vote” theory of representation. Following the English practice of geographical representation, Virginia allowed each county, whatever the size of its population, to send two members to the capital in Williamsburg, which gave the people in the aristocratic Tidewater section of the State a distinct political advantage over inhabitants in the western part of the State. Such sectional inequalities existed in other States as well, particularly Maryland and South Carolina.
By the words “the people,” then, the Virginians meant the gentlemen freeholders, not the entire population equally apportioned. Indeed, a complete democracy on a grand scale was widely regarded throughout the colonies as a threat to law and order. The example of Pennsylvania, which abolished all property qualifications for voting and holding office and produced a document making a mockery of constitutional government in the eyes of some onlookers, confirmed the suspicions of many colonial leaders that an unrestrained democracy would drive good men out of public office and turn the affairs of state over to pettifoggers, bunglers, and demagogues. They wanted representation of brains, not bodies—and for a number of years the best minds in the country dominated American politics. Indeed, this probably worked to the advantage of the country in the long run, for it is questionable whether the entire public in 1776 was capable of exercising all of the responsibilities of self-government. No doubt the Virginia Constitution and Declaration of Rights, as well as the American Constitution of 1787, would have fallen even shorter of perfection had they been written by popularly chosen assemblies of untutored and inexperienced deputies of the people at large. “The voice of the people has been said to be the voice of God,” said Alexander Hamilton in the Philadelphia Convention, “and however generally this maxim has been quoted and believed, it is not true to fact. The people are turbulent and changing, they seldom judge or determine right.” It may therefore be doubted, he added when addressing the New York Ratifying Convention in 1788, whether they “possess the discernment and stability necessary for systematic government.”
Certainly the antidemocratic sentiments expressed by many of the Founding Fathers strike the modern student of government as unenlightened. Perhaps they were. It must be remembered, however, that they were sailing on uncharted seas. They were not familiar with universal suffrage and mass democracy. Nor were many of their countrymen prepared for the duties that accompany political liberty. Besides, there was an abundance of historical evidence indicating that democracies tend toward mediocrity and tyranny of the majority. Cautiously but deliberately they nevertheless inched their way toward a more broadly based democracy, and with each passing decade their faith in the people grew stronger. There were many factors which propelled the nation in this direction, but none more important, as we shall see, than the establishment of a democratic republic under the Constitution of 1787.
The Articles of Confederation
The Articles of Confederation were written almost simultaneously with the Declaration of Independence. When Richard Henry Lee of Virginia introduced his resolution on June 7, 1776, proposing a formal dissolution of the colonial relationship with England, there was an accompanying resolution calling upon Congress to draft a constitution for the “united colonies.” A committee was formed for this purpose under the chairmanship of John Dickinson, and on July 12 it reported a plan for a new government. The Dickinson draft was later revised in favor of strengthening the power of the States, however, and the Articles of Confederation were not agreed upon by Congress until November 15, 1777. Two days later they were submitted to the State legislatures for ratification, and every State except Maryland ratified within the next two years.
Maryland’s refusal to join the confederation stemmed not from any objection to the Articles themselves, but from a concern about the status of trans-Allegheny land in the West. Virginia, New York, Massachusetts, and Connecticut all claimed western lands under their old charters, and there was considerable disagreement over rival claims of ownership by States and land companies. State jealousies also contributed to the dissention, for these vast expanses of territory were a potential source of great wealth and power. Maryland and four other small States—New Hampshire, Rhode Island, New Jersey, and Delaware—took the view that all western lands were or should be the common property of the nation. Fearing oppression by the large States, the small States were the last to ratify the Articles, Delaware reluctantly assenting as late as May 1779. Maryland stood fast, however, and withheld her support until all western land claims were ceded to Congress. Virginia was equally stubborn and did not agree to abandon her claim until 1781. When Virginia at last renounced her right to all territory northwest of the Ohio River (the “old northwest”), Maryland representatives promptly signed the document. The Articles of Confederation did not officially take effect, therefore, until March 1, 1781.
The peaceful settlement of this protracted dispute permanently influenced the nature of the union and helped to lay the foundation for the federal system of government. Virginia contended that, under her sea-to-sea charter of 1609, her territory extended all the way to the “South Seas” (the Pacific Ocean). Had Virginia and the other States claiming western land refused to surrender their claims, it is doubtful whether the Articles of Confederation or any other scheme for a union of all the States would have succeeded. With virtually half of the continent under her sovereign jurisdiction, Virginia might well have become a nation unto herself, and North America might have become many countries instead of one. Ironically, it was Richard Henry Lee, a States’ Rights man and a stalwart foe of centralization, who, more than any other Virginia leader, persuaded the State legislature to voluntarily limit the size of the State. Lee doubted the validity of Virginia’s claim and believed that republican government would not succeed in a country so large as that contemplated by some Virginians. The cession of western territory by Virginia and other States thus served to unify the thirteen original States. It also made possible the creation of many new States in the future, resulting in the formation of a single federal union, under one flag, from the Atlantic to the Pacific.
The controversy over land was actually only one of many issues that divided the large States and the small States in 1776. Members of Congress also quarreled over the method of representation in the confederation Congress and the basis for determining how much each State should contribute to the national treasury to fund the government. The larger States favored proportional representation based on population, which would give them a larger delegation in Congress and more power. The smaller States wanted equal representation, which would give them a disproportionate share of power, particularly if they voted together as a bloc. Should the States pay an equal share into the Treasury or would it be preferable if the States were unequally taxed? These issues were debated throughout the summer of 1776, and the members finally agreed upon a compromise: each State would have one vote in Congress, thus securing the complete political equality of the States, but the expenses of the confederation government were to be supplied by the States in proportion to the value of land within each State. In other words, equality of the States was accepted as the basis of voting power in Congress, and inequality was accepted as the basis for State contributions to the Treasury.
At the heart of this debate was a fundamental problem that would return to haunt the delegates of the Philadelphia Convention in 1787. As Thomas Burke, a representative from North Carolina, put it, “The inequality of the States and yet the necessity of maintaining their separate independence, will occasion dilemmas almost inextricable.” This was no exaggeration of the extent and depth of the difficulty. The Philadelphia Convention, as we shall see, nearly reached a permanent impasse trying to reconcile these conflicting interests. The solution that was finally agreed upon in 1787 was the creation of a bicameral legislature based on State equality in the upper chamber and proportional representation in the lower. From the standpoint of the larger States, this was actually an improvement, since the Congress established under the Articles was a unicameral legislature based on State equality alone. After the Constitution was adopted, this fear and antagonism between large and small States disappeared, only to be superseded by sectional conflicts between the northern and southern States.
Equally momentous in the summer of 1776 was the question of State sovereignty. The location of ultimate political authority was, in fact, the most important issue in the writing of the Articles. Should sovereignty reside in Congress or in the States? The issue was debated at length, but in the end the proponents of State sovereignty, many of whom were architects of the States’ Rights school of thought in later years, ultimately prevailed. Not only did they secure the principle of State equality in the legislature, but they also incorporated language into Article II affirming that “Each State retains its sovereignty, freedom and independence.” Like the Constitution of 1787, the Articles of Confederation rested on the premise that all legislative authority originated in the people of each State, and that the powers exercised by Congress were given or delegated to Congress by the people in the States. Those powers not delegated were reserved to the States or the people.
Article II further provided, however, that Congress was limited to those powers “expressly” delegated by the States. The intended effect of this wording was to prevent Congress from usurping the reserved powers of the States by claiming that it possessed not only delegated powers, but also certain additional powers that might be implied from those specifically granted. Significantly, no explicit references to State sovereignty were included in the Constitution of 1787. The word “expressly” was also omitted from the Tenth Amendment to the Constitution, which stated simply that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Underscoring the principle of State sovereignty, Article III described the confederacy formed under the Articles of Confederation as a “league of friendship.” In essence, therefore, the Articles were ostensibly little more than a treaty among sovereign republics, comparable in this century to the League of Nations or its successor, the United Nations. The “league” was declared to be “perpetual,” and like an international agreement, the Articles contained various provisions for mutual friendship and cooperation among the signatories.
Under traditional principles of international law and comity, for example, it is a common practice for one country to grant certain basic civil rights and privileges to foreigners traveling or residing within its borders that it grants to its own citizens. An American citizen visiting Italy, let us say, or almost any civilized nation of the free world, will find the same degree of protection to his person or property as is enjoyed by the citizens of those nations. He may, to cite just one example, file a lawsuit in the courts of a foreign country in order to assert a certain right. In recognition of this principle, Article IV of the Articles of Confederation provided that the “free inhabitants” of one State sojourning in another State were “entitled to all privileges and immunities of free citizens in the several States,” to “free ingress and egress to and from any other State,” and to “all the privileges of trade and commerce.”
Article IV also provided for the extradition (surrender) of fugitives from justice. It sometimes occurs that a convicted felon or individual charged with a serious offense will escape to a foreign country. The country to which this person has fled is not obliged under the law of nations, however, to turn the individual over to the country from which he fled, even if requested. For this reason, arrangements between nations for the extradition of fugitives are made through treaties. Such is the manner in which this problem was handled under the Articles of Confederation, making extradition a legal obligation.
Finally, Article IV provided that “Full faith and credit shall be given in each of these States to the records, acts and judicial proceedings of the courts and magistrates of every other State.” This meant that each State court was legally obligated to recognize the statutes and judicial decisions of other States, as is customary under what is called private international law or the “conflict of laws.” Thus, in a case of contracts, the laws of a foreign country where the contract was made must govern. Article IV simply applied this principle of international law to the States of the confederacy.
All of these provisions, it should be noted, were carried over, in slightly different wording, to the Constitution of 1787. They were deemed essential because the several States were not legally obligated to recognize or enforce the rights protected. They assumed, in other words, that the States, in their quasi-international relationship with each other, were sovereign entities, and that it would be necessary, therefore, to establish these rights by agreement.
Although the several States, it may be seen, were treated under the Articles as sovereign powers, a heated debate would rage for nearly a century over the issue of whether the States, at the time they entered the confederacy, retained all the attributes of sovereignty. That they voluntarily surrendered certain powers to the confederate government is abundantly clear from a reading of the Articles, and there can be no question that in a real or practical sense they did not possess all of the sovereignty that is enjoyed by an independent nation. But did their voluntary renunciation of certain powers constitute a permanent transfer of power, thereby terminating or substantially reducing their legal sovereignty? This question became critical after the Constitution was adopted, for one of the major premises of the States’ Rights theory of the nature of the union was that the States had always retained their sovereign right to secede from the confederacy or the Federal union. If the States were not sovereign before the Constitution was adopted, then they could hardly claim to possess sovereignty after adoption; but if they were sovereign before such adoption, then it would follow, at the very least, that they came to Philadelphia as sovereign States, which would serve as a point of departure for an argument in support of State sovereignty after 1787.
Statesmen, lawyers, and constitutional scholars have argued the question of State sovereignty almost from the inception of the Constitution. The answer, if there is one, depends in large measure on the definition of sovereignty we adopt, on the wording and text of the documents, and on the perceptions and understanding of the participants themselves. We need not venture a conclusion here to this complex question, however, except to point out that the Founding Fathers struggled mightily with the difficult question of sovereignty from the very beginning. By the very fact that they were taking the unprecedented step of creating a confederation and then a union of States, thereby dividing sovereignty between two levels of government, they necessarily introduced a new concept of sovereignty into political and constitutional theory. Their inability to address the issue of sovereignty directly and resolve it decisively one way or another proved to be a serious, though probably unavoidable, omission.
What kind of central government did the Articles of Confederation create amidst all this confusion over the location of sovereignty? In a way, the Articles created hardly any government at all. So rudimentary were its limited powers that some observers objected later to the description of the Articles as a “constitution,” preferring instead to view the document as something less than fundamental law. The unicameral Congress established under the Articles possessed all of the powers of the confederate government, and these amounted to a paltry sum. Congress was given no more power than it was already exercising—to make war and peace, to send and receive ambassadors, to enter into treaties and alliances, to coin money, to regulate Indian affairs, and to establish a post office.
The powers of taxation and regulation of both foreign and domestic commerce, though essential to the government, were reserved to the States. These were the powers that formed the basis of the dispute with England, and the States were therefore not of a mind to surrender them to another central government. Denied the power of tax, Congress was obliged to rely upon the system of State appropriations that had proved to be hopelessly inadequate in the colonial period. Many of the States failed to cooperate, as might be expected, and the Confederation was almost invariably in a chronic state of near bankruptcy.
Because the States retained their sovereignty, the Articles made no provision for an executive or judicial branch, and all of the functions of the confederation government were concentrated in one legislative body. A separation of powers was not deemed necessary since the confederation had so little power in the first place. The threat of legislative tyranny was indeed exceedingly remote. The executive function was therefore exercised by various committees of the Congress. At one point there were ninety-nine such committees, with overlapping jurisdiction and rival claims of authority. Consequently, there was no executive unity in the confederation, and not infrequently the government spoke in a babble of voices.
Having no judiciary of its own, the confederation authorized the Congress to settle a narrow range of disputes through ad hoc courts. If two or more States, for example, disagreed over a boundary line, any one of the parties to the dispute was free to appeal to Congress for relief. Congress settled some six disputes of this nature during the Confederation period. The Articles further provided that Congress could establish courts to try cases of piracy and felony committed on the high seas and to determine ownership of vessels and cargo in “cases of capture” or prize cases.
Otherwise, the Confederation relied upon the State judiciaries for the enforcement of national laws and treaties. Although certain provisions of the Articles seemed to indicate that they were to be accorded the status of law and “inviolably observed by every State,” there was no provision comparable to the Supremacy Clause of the Constitution requiring the State courts to treat the Articles or any of the laws and treaties of the Confederation as the law of the land. This was perhaps the fatal weakness of the system. Answerable to the State legislatures that controlled their salaries and tenure, and often lacking any real independence because most of the early State constitutions were based upon legislative supremacy, State judges were disinclined to defend Confederation enactments in the face of hostile State assemblymen. Thus the Treaty of Peace signed in 1783 with England, calling for the return of Tory property confiscated during the Revolution, was openly flouted by State legislatures and ignored by State courts. In their role as agents of the Confederation, State officials proved to be unreliable because their first loyalty was to the States they served. What the Confederation government needed and lacked was a system which, instead of going through the State governments, operated directly on individuals through its own agents. Not until the adoption of the Constitution was this serious deficiency corrected.
In light of these difficulties, it comes as no surprise that the Confederation fell woefully short of expectations. During the American Revolution, outbreaks of mutiny were a constant threat to General Washington and his officers because the army was hardly ever paid. In despair, the Continental Congress simply printed more money to finance the war effort, thereby devaluing the currency. In 1780 alone, more than $40 million of paper money, a considerable sum in those days (but “not worth a continental”), was issued by the legislature. Between 1778 and 1783, the United States borrowed several millions from the Dutch and French governments but was so financially destitute that it could not even pay the interest on these loans. After 1783, when the British agreed to vacate the trans-Allegheny territory, the Confederation also lacked the financial resources to garrison the West. As a result, British soldiers continued to occupy their forts in the Northwest, the Spanish intruded upon American soil in the southern regions and interfered with American navigation of the Mississippi, and the Indians roamed Kentucky and Tennessee at will, preying on settlers.
Not the least of the difficulties faced by the Confederation was the serious decline of commercial activity, which further impoverished the government. With impunity, a number of States erected trade barriers and imposed import duties to protect various State economic interests, thereby cutting off or delaying the flow of commerce among the States. Because the Congress had no means of enforcing trade agreements with foreign nations and could not guarantee that the States would comply with the terms, European powers refused to negotiate commercial treaties with the United States. England freely discriminated against American merchants in her home ports and even closed the West Indies to Yankee traders.
Often the States suffered as much from the helplessness of the Confederate government as they did from the excesses and turmoil of their own legislatures. According to the Articles of Confederation, the money power was lodged in Congress. In many of the States, however, radical factions supported by debtors, small farmers, mechanics, and other low-income groups gained control of the State legislatures and used their influence to pass laws fixing prices in paper money, fining merchants for their refusal to accept paper currency at face value, suspending the collection of debts, and forbidding courts to grant judgments for debt. In New England and in the middle Atlantic States, unruly mobs intimidated lawyers and judges, burned courthouses, and interfered with the administration of the law.
The most widely publicized event was Shays’ Rebellion, which occurred in Massachusetts in 1786. Daniel Shays, leading an armed band of farmers and debtors, closed down the courts in the interior and western part of the State and threatened to march on Boston if the legislature did not pass inflationary legislation. Military force was required to put down the uprising. The Articles of Confederation were often blamed for these outbreaks of lawlessness, for the financial chaos of the country, and for the assaults on the rights of property. Shays’ Rebellion probably quickened the pace toward constitutional reform. Those clauses in the Constitution prohibiting the States from coining money, emitting bills of credit, making anything but gold and silver legal tender in payment of debt, and impairing the obligation of contracts are directly attributable to these paper-money struggles in the 1780s.
Despite its many shortcomings, our nation’s first instrument of national government was by no means a total failure. Under the Articles of Confederation, the United States fought to a successful conclusion a long war with one of the most powerful nations on earth, established a new government under a written constitution, and united a diverse population of some three million people scattered over thousands of miles of wilderness. No attempts were made to overthrow the government, and the regime actually achieved a fair degree of order and stability without trampling on the rights of people.
Some constitutional historians have speculated that the Articles of Confederation, had they remained in force, might have succeeded in the long run, and that the government could have eventually evolved into a parliamentary system of some sort, with a cabinet made up of congressional leaders exercising the executive function. This is an optimistic view of the matter, however, and it may be doubted whether the Articles would have long endured without substantial revision. The problem was that, even when members of Congress were aware of the need for change, there was little they could do about it. A major flaw in many of the first State constitutions was the failure of colonial draftsmen to include a provision allowing for amendments to correct errors in the founding document. In some instances the State legislatures sidestepped this difficulty by simply treating amendments as ordinary legislation, thereby assuming the right to amend, as is customary under a parliamentary system. The Articles of Confederation, however, presented a more serious obstacle. Simple legislation required the vote of nine States, making it relatively easy for a minority of States, with a minority of the population, to block legislation. Worse, the Articles specifically required the unanimous consent of all the States for an amendment, making it possible for a single State to prevent any change in the original compact. Thus in 1781 Rhode Island blocked a proposed amendment that would have allowed the Confederation to collect a five percent import duty. In effect, it was exceedingly difficult to pass legislation and virtually impossible to pass an amendment. Indeed, not a single amendment was adopted during the eight years in which the Articles were in force, even though the need for a major overhaul of the system was generally acknowledged by many of the members. Because they could not in reality be changed much, if it all, the Articles of Confederation were doomed to extinction.
By 1786, the situation had become intolerable. The Treasury was empty. The government was so weak and helpless that it could not even protect its western frontier. The United States had become an object of ridicule and jest in England and elsewhere in Europe, and the prospects for improvement and reform were bleak. In a final act of desperation, Charles Pinckney of South Carolina forced the issue of a constitutional convention to a vote on the floor of Congress, only to be soundly rebuffed. Too many members were more interested in their own positions and in the parochial concerns of their individual States than in the general welfare of the country. The American nation was still thought of as a group of nation-States, and the members of Congress were reluctant to surrender their power voluntarily. The government was paralyzed.
If a movement for reform was to succeed, therefore, it would have to be launched outside of Congress. It began by chance in 1785, when Virginia and Maryland signed an agreement settling a longstanding dispute over conflicting commercial interests on the Potomac River. Enthused by this accomplishment, the Maryland legislature came up with the idea that it might be possible for a number of States, through interstate agreements, to improve their commercial relations. Accordingly, the Maryland assembly proposed a commercial convention to Virginia that would include the neighboring States of Pennsylvania and Delaware. Virginia responded by suggesting that the invitation be extended to all of the States, and that a convention be held to consider a general commercial agreement.
Maryland agreed, and in September 1786 a convention met in Annapolis. Only five States were represented, however, and no delegates from New England, the Carolinas, or Georgia made an appearance. Two important delegates to the Annapolis Convention were Alexander Hamilton and James Madison. Seizing an opportunity to organize a constitutional reform effort, they persuaded the delegates unanimously to adopt an address to the States, calling upon them to send delegates to a constitutional convention in Philadelphia the following May. But Congress refused to give its approval, and the proposal seemed headed for defeat.
In November 1786, however, the Virginia legislature broke the impasse with a resolution urging all of the States to send delegates to the Philadelphia Convention. Within a few days, New Jersey responded favorably, followed by North Carolina in January and Delaware in February of 1787. Perceiving the inevitable, a reluctant Congress adopted, without reference to the Annapolis recommendation, its own resolution providing for a convention to meet at the same time and place. All of the other States, with the exception of an intransigent Rhode Island, thereupon agreed to participate in the Philadelphia proceedings. The movement for constitutional reform now had the backing of the nation’s leading statesmen. All the while the Federal Convention was in session in Philadelphia in the summer of 1787, the Continental Congress remained in session in New York, helpless and acquiescent, a spectator, as it were, to its own demise.
The Constitution of the United States that was to emerge from these Philadelphia proceedings in September 1787, it is important to note, was initiated by the States, not by the people at large or by the Congress. Thus it was the States themselves that dissolved their own confederation. Never again would the States together initiate a constitutional change, although the Bill of Rights was the result of their recommendations. Since 1787, however, all of the amendments that have been added to the Constitution have originated in Congress.
The Mayflower Compact
in the name of god, amen.
We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord King James, by the Grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &c. Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a Voyage to plant the first colony in the northern Parts of Virginia; Do by these Presents, solemnly and mutually in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid; And by Virtue hereof do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions, and Offices, from time to time, as shall be thought most meet and convenient for the general Good of the Colony; unto which we promise all due Submission and Obedience. In WITNESS whereof we have hereunto subscribed our names at Cape Cod the eleventh of November, in the Reign of our Sovereign Lord King James of England, France, and Ireland, the eighteenth and of Scotland, the fifty-fourth. Anno Domini, 1620.
[41 signatures are appended to the document]
Fundamental Orders of Connecticut
January 14, 1639
Forasmuch as it hath pleased the Allmight God by the wise disposition of his divyne pruvidence so to Order and dispose of things that we the Inhabitants and Residents of Windsor, Harteford and Wethersfield are now cohabiting and dwelling in and uppon the River of Conectecotte and the Lands thereunto adioyneing; And well knowing where a people are gathered togather the word of God requires that to mayntayne the peace and union of such a people there should be an orderly and decent Government established according to God, to order and dispose of the affayres of the people at all seasons as occation shall require; doe therefore assotiate and conioyne our selves to be as one Publike State or Commonwelth; and doe, for our selves and our Successors and such as shall be adioyned to us att any tyme hereafter, enter into Combination and Confederation togather, to mayntayne and presearve the liberty and purity of the gospell of our Lord Jesus which we now professe, as also the disciplyne of the Churches, which according to the truth of the said gospell is now practised amongst us; As also is our Civell Affaires to be guided and governed according to such Lawes, Rules, Orders and decrees as shall be made, ordered & decreed, as followeth:—
1. It is Ordered … that there shall be yerely two generall Assemblies or Courts, the one the second thursday in September, following; the first shall be called the Courte of Election, wherein shall be yerely Chosen … soe many Magestrats and other publike Officers as shall be found requisitte: Whereof one to be chosen Governour for the yeare ensueing and untill another be chosen, and noe other Magestrate to be chosen for more than one yeare; provided allwayes there be sixe chosen besids the Governour; which being chosen and sworne according to an Oath recorded for that purpose shall have power to administer justice according to the Lawes here established, and for want thereof according to the rule of the word of God; which choise shall be made by all that are admitted freemen and have taken the Oath of Fidellity, and doe cohabitte within this Jurisdiction, (having beene admitted Inhabitants by the major part of the Towne wherein they live,) or the major parte of such as shall be then present. …
4. It is Ordered … that noe person be chosen Governor above once in two yeares, and that the Governor be alwayes a member of some approved congregation, and formerly of the Magestracy within this Jurisdiction; and all the Magestrats Freemen of this Commonwelth: …
5. It is Ordered … that to the aforesaid Courte of Election the severall Townes shall send their deputyes, and when the Elections are ended they may proceed in any publike searvice as at other Courts. Also the other Generall Courte in September shall be for makeing of lawes, and any other publike occation, which conserns the good of the Commonwelth. …
7. It is Ordered … that after there are warrants given out for any of the said Generall Courts, the Constable … of ech Towne shall forthwith give notice distinctly to the inhabitants of the same, … that at a place and tyme by him or them lymited and sett, they meet and assemble them selves togather to elect and chuse certen deputyes to be att the Generall Courte then following to agitate the afayres of the commonwelth; which said Deputyes shall be chosen by all that are admitted Inhabitants in the severall Townes and have taken the oath of fidellity; provided that non be chosen a Deputy for any Generall Courte which is not a Freeman of this Commonwelth. …
8. It is Ordered … that Wyndsor, Harteford and Wethersfield shall have power, ech Towne, to send fower of their freemen as their deputyes to every Generall Courte; and whatsoever other Townes shall be hereafter added to this Jurisdiction, they shall send so many deputyes as the Courte shall judge meete, a reasonable proportion to the number of Freemen that are in the said Townes being to be attended therein; which deputyes shall have the power of the whole Towne to give their voats and allowance to all such lawes and orders as may be for the publike good, and unto which the said Townes are to be bownd.
9. It is ordered … that the deputyes thus chosen shall have power and liberty to appoynt a tyme and a place of meeting togather before any Generall Courte to advise and consult of all such things as may concerne the good of the publike, as also to examine their owne Elections. …
10. It is Ordered … that every Generall Courte … shall consist of the Governor, or some one chosen to moderate the Court, and 4 other Magestrats at lest, with the major parte of the deputyes of the severall Townes legally chosen; and in case the Freemen or major parte of them, through neglect or refusall of the Governor and major parte of the magestrate, shall call a Courte, it shall consist of the major parte of Freemen that are present or their deputyes, with a Moderator chosen by them: In which said Generall Courts shall consist the supreme power of the Commonwelth, and they only shall have power to make lawes or repeale them, to graunt levyes, to admitt of Freemen, dispose of lands undisposed of, to severall Townes or persons, and also shall have power to call ether Courte or Magestrate or any other person whatsoever into question for any misdemeanour, and may for just causes displace or deale otherwise according to the nature of the offence; and also may deale in any other matter that concerns the good of this commonwelth, excepte election of Magestrats, which shall be done by the whole boddy of Freemen.
In which Courte the Governour or Moderator shall have power to order the Courte to give liberty of spech, and silence unceasonable and disorderly speakeings, to put all things to voate, and in case the vote be equall to have the casting voice. But non of these Courts shall be adjorned or dissolved without the consent of the major parte of the Court.
11. It is ordered … that when any Generall Courte uppon the occations of the Commonwelth have agreed uppon any summe or sommes of mony to be levyed uppon the severall Townes within this Jurisdiction, that a Committee be chosen to sett out and appoynt what shall be the proportion of every Towne to pay of the said levy, provided the Committees be made up of an equall number out of each Towne.
Declaration and Resolves of the First Continental Congress
October 14, 1774
Whereas, since the close of the last war, the British parliament, claiming a power of right to bind the people of America by statute in all cases whatsoever, hath, in some acts expressly imposed taxes on them, and in others, under various pretenses, but in fact for the purpose of raising a revenue, hath imposed rates and duties payable in these colonies, established a board of commissioners with unconstitutional powers, and extended the jurisdiction of courts of Admiralty not only for collecting the said duties, but for the trial of causes merely arising within the body of a county.
And whereas, in consequence of other statutes, judges who before held only estates at will in their offices, have been made dependent on the Crown alone for their salaries, and standing armies kept in times of peace. And it has lately been resolved in Parliament, that by force of a statute made in the thirty-fifth year of the reign of King Henry the Eighth, colonists may be transported to England, and tried there upon accusations for treasons and misprisions, or concealments of treasons committed in the colonies; and by a late statute, such trials have been directed in cases therein mentioned:
And whereas, in the last session of Parliament, three statutes were made … [the Boston Port Act, the Massachusetts Government Act, the Administration of Justice Act], and another statute was then made [the Quebec Act] … All which statutes are impolitic, unjust, and cruel, as well as unconstitutional, and most dangerous and destructive of American rights.
And whereas, Assemblies have been frequently dissolved, contrary to the rights of the people, when they attempted to deliberate on grievances; and their dutiful, humble, loyal, & reasonable petitions to the crown for redress, have been repeatedly treated with contempt, by His Majesty’s ministers of state:
The good people of the several Colonies of New-hampshire, Massachusetts-bay, Rhode-island and Providence plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Newcastle, Kent and Sussex on Delaware, Maryland, Virginia, North-Carolina, and South-Carolina, justly alarmed at these arbitrary proceedings of parliament and administration, have severally elected, constituted, and appointed deputies to meet, and sit in general Congress, in the city of Philadelphia, in order to obtain such establishment, as that their religion, laws, and liberties, may not be subverted:
Whereupon the deputies so appointed being now assembled, in a full and free representation of these Colonies, taking into their most serious consideration the best means of attaining the ends aforesaid, do in the first place, as Englishmen their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties, declare,
That the inhabitants of the English Colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following Rights:
Resolved, N. C. D.
1. That they are entitled to life, liberty, and property, & they have never ceded to any sovereign power whatever, a right to dispose of either without their consent.
2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects within the realm of England.
3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.
4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed. But, from the necessity of the case, and a regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British parliament, as are bona fide restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America without their consent.
5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
6. That they are entitled to the benefit of such of the English statutes, as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.
7. That these, his majesty’s colonies, are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.
8. That they have a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.
9. That the keeping a Standing army in these colonies, in times of peace, without the consent of the legislature of that colony in which such army is kept, is against law.
10. It is indispensably necessary to good government, and rendered essential by the English constitution, that the constituent branches of the legislature be independent of each other; that, therefore, the exercise of legislative power in several colonies, by a council appointed during pleasure, by the crown, is unconstitutional, dangerous, and destructive to the freedom of American legislation.
All and each of which the aforesaid deputies, in behalf of themselves, and their constituents, do claim, demand, and insist on, as their indubitable rights and liberties; which cannot be legally taken from them, altered or abridged by any power whatever, without their own consent, by their representatives in their several provincial legislatures.
In the course of our inquiry, we find many infringements and violations of the foregoing rights, which, from an ardent desire that harmony and mutual intercourse of affection and interest may be restored, we pass over for the present, and proceed to state such acts and measures as have been adopted since the last war, which demonstrate a system formed to enslave America.
Resolved, That the following acts of Parliament are infringements and violations of the rights of the colonists; and that the repeal of them is essentially necessary, in order to restore harmony between Great Britain and the American colonies, … viz.:
The several Acts of 4 Geo. 3, ch. 15 & ch. 34, 5 Geo. 3, ch. 25; 6 Geo. 3, ch. 52; 7 Geo. 3, ch. 41 & 46; 8 Geo. 3, ch. 22; which impose duties for the purpose of raising a revenue in America, extend the powers of the admiralty courts beyond their ancient limits, deprive the American subject of trial by jury, authorize the judges’ certificate to indemnify the prosecutor from damages that he might otherwise be liable to, requiring oppressive security from a claimant of ships and goods seized before he shall be allowed to defend his property; and are subversive of American rights.
Also the 12 Geo. 3, ch. 24, entitled “An act for the better preserving his Majesty’s dockyards, magazines, ships, ammunition, and stores,” which declares a new offense in America, and deprives the American subject of a constitutional trial by jury of the vicinage, by authorizing the trial of any person charged with the committing any offense described in the said act, out of the realm, to be indicted and tried for the same in any shire or county within the realm.
Also the three acts passed in the last session of parliament, for stopping the port and blocking up the harbour of Boston, for altering the charter & government of the Massachusetts-bay, and that which is entitled “An Act for the better administration of Justice,” &c.
Also the act passed the same session for establishing the Roman Catholic Religion in the province of Quebec, abolishing the equitable system of English laws, and erecting a tyranny there, to the great danger, from so great a dissimilarity of Religion, law, and government, of the neighboring British colonies. …
Also the act passed the same session for the better providing suitable quarters for officers and soldiers in his Majesty’s service in North America.
Also, that the keeping a standing army in several of these colonies, in time of peace, without the consent of the legislature of that colony in which the army is kept, is against law.
To these grievous acts and measures Americans cannot submit, but in hopes that their fellow subjects in Great-Britain will, on a revision of them, restore us to that state in which both countries found happiness and prosperity, we have for the present only resolved to pursue the following peaceable measures: 1st. To enter into a non-importation, non-consumption, and non-exportation agreement or association. 2. To prepare an address to the people of Great-Britain, and a memorial to the inhabitants of British America, & 3. To prepare a loyal address to his Majesty, agreeable to resolutions already entered into.
Declaration of the Causes and Necessity of Taking Up Arms
July 6, 1775
If it was possible for men, who exercise their reason to believe, that the divine Author of our existence intended a part of the human race to hold an absolute property in, and an unbounded power over others, marked out by his infinite goodness and wisdom, as the objects of a legal domination never rightfully resistible, however severe and oppressive, the inhabitants of these colonies might at least require from the parliament of Great-Britain some evidence, that this dreadful authority over them, has been granted to that body. But a reverence for our great Creator, principles of humanity, and the dictates of common sense, must convince all those who reflect upon the subject, that government was instituted to promote the welfare of mankind, and ought to be administered for the attainment of that end. The legislature of Great-Britain, however, stimulated by an inordinate passion for a power not only unjustifiable, but which they know to be peculiarly reprobated by the very constitution of that kingdom, and desperate of success in any mode of contest, where regard should be had to truth, law, or right, have at length, deserting those, attempted to effect their cruel and impolitic purpose of enslaving these colonies by violence, and have thereby rendered it necessary for us to close with their last appeal from reason to arms.—Yet, however blinded that assembly may be, by their intemperate rage for unlimited domination, so to slight justice and the opinion of mankind, we esteem ourselves bound by obligations of respect to the rest of the world, to make known the justice of our cause.
Our forefathers, inhabitants of the island of Great-Britain, left their native land, to seek on these shores a residence for civil and religious freedom. At the expense of their blood, at the hazard of their fortunes, without the least charge to the country from which they removed, by unceasing labor, and an unconquerable spirit, they effected settlements in the distant and inhospitable wilds of America, then filled with numerous and warlike nations of barbarians.—Societies or governments, vested with perfect legislatures, were formed under charters from the crown, and an harmonious intercourse was established between the colonies and the kingdom from which they derived their origin. The mutual benefits of this union became in a short time so extraordinary, as to excite astonishment. It is universally confessed, that the amazing increase of the wealth, strength, and navigation of the realm, arose from this source; and the minister, who so wisely and successfully directed the measures of Great-Britain in the late war, publicly declared, that these colonies enabled her to triumph over her enemies.—Towards the conclusion of that war, it pleased our sovereign to make a change in his counsels.—From that fatal moment, the affairs of the British empire began to fall into confusion, and gradually sliding from the summit of glorious prosperity, to which they had been advanced by the virtues and abilities of one man, are at length distracted by the convulsions, that now shake it to its deepest foundations.— The new ministry finding the brave foes of Britain, though frequently defeated, yet still contending, took up the unfortunate idea of granting them a hasty peace, and of then subduing her faithful friends.
These devoted colonies were judged to be in such a state, as to present victories without bloodshed, and all the easy emoluments of statutable plunder.—The uninterrupted tenor of their peaceable and respectful behavior from the beginning of colonization, their dutiful, zealous, and useful services during the war, though so recently and amply acknowledged in the most honorable manner by his majesty, by the late king, and by parliament, could not save them from the meditated innovations.— Parliament was influenced to adopt the pernicious project, and assuming a new power over them, have in the course of eleven years, given such decisive specimens of the spirit and consequences attending this power, as to leave no doubt concerning the effects of acquiescence under it. They have undertaken to give and grant our money without our consent, though we have ever exercised an exclusive right to dispose of our own property; statutes have been passed for extending the jurisdiction of courts of admiralty, and vice-admiralty beyond their ancient limits; for depriving us of the accustomed and inestimable privilege of trial by jury, in cases affecting both life and property; for suspending the legislature of one of the colonies; for interdicting all commerce to the capital of another; and for altering fundamentally the form of government established by charter, and secured by acts of its own legislature solemnly confirmed by the crown; for exempting the “murderers” of colonists from legal trial, and in effect, from punishment; for erecting in a neighboring province, acquired by the joint arms of Great-Britain and America, a despotism dangerous to our very existence; and for quartering soldiers upon the colonists in time of profound peace. It has also been resolved in parliament, that colonists charged with committing certain offenses, shall be transported to England to be tried.
But why should we enumerate our injuries in detail? By one statute it is declared, that parliament can “of right make laws to bind us in all cases whatsoever.” What is to defend us against so enormous, so unlimited a power? Not a single man of those who assume it, is chosen by us; or is subject to our control or influence; but, on the contrary, they are all of them exempt from the operation of such laws, and an American revenue, if not diverted from the ostensible purposes for which it is raised, would actually lighten their own burdens in proportion, as they increase ours. We saw the misery to which such despotism would reduce us. We for ten years incessantly and ineffectually besieged the throne as supplicants; we reasoned, we remonstrated with parliament, in the most mild and decent language. But administration sensible that we should regard these oppressive measures as freemen ought to do, sent over fleets and armies to enforce them. The indignation of the Americans was roused, it is true; but it was the indignation of a virtuous, loyal, and affectionate people. A Congress of delegates from the United Colonies was assembled at Philadelphia, on the fifth day of last September. We resolved again to offer an humble and dutiful petition to the king, and also addressed our fellow-subjects of Great-Britain. We have pursued every temperate, every respectful measure: we have even proceeded to break off our commercial intercourse with our fellow-subjects, as the last peaceable admonition, that our attachment to no nation upon earth should supplant our attachment to liberty.—This, we flattered ourselves, was the ultimate step of the controversy: but subsequent events have shown, how vain was this hope of finding moderation in our enemies.
Several threatening expressions against the colonies were inserted in his majesty’s speech; our petition, though we were told it was a decent one, and that his majesty had been pleased to receive it graciously, and to promise laying it before his parliament, was huddled into both houses among a bundle of American papers, and there neglected. The lords and commons in their address, in the month of February, said, that “a rebellion at that time actually existed within the province of Massachusetts-Bay; and that those concerned in it, had been countenanced and encouraged by unlawful combinations and engagements, entered into by his majesty’s subjects in several of the other colonies; and therefore they besought his majesty, that he would take the most effectual measures to enforce due obedience to the laws and authority of the supreme legislature.”—Soon after, the commercial intercourse of whole colonies, with foreign countries, and with each other, was cut off by an act of parliament; by another several of them were entirely prohibited from the fisheries in the seas near their coasts, on which they always depended for their sustenance; and large reinforcements of ships and troops were immediately sent over to General Gage.
Fruitless were all the entreaties, arguments, and eloquence of an illustrious band of the most distinguished peers, and commoners, who nobly and stren[u]ously asserted the justice of our cause, to stay, or even to mitigate the heedless fury with which these accumulated and unexampled outrages were hurried on. …
… General Gage, who in the course of the last year had taken possession of the town of Boston, in the province of Massachusetts-Bay, … on the 19th day of April, sent out from that place a large detachment of his army, who made an unprovoked assault on the inhabitants of the said province, at the town of Lexington, as appears by the affidavits of a great number of persons, some of whom were officers and soldiers of that detachment, murdered eight of the inhabitants, and wounded many others. From thence the troops proceeded in warlike array to the town of Concord, where they set upon another party of the inhabitants of the same province, killing several and wounding more, until compelled to retreat by the country people suddenly assembled to repel this cruel aggression. Hostilities, thus commenced by the British troops, have been since prosecuted by them without regard to faith or reputation.—The inhabitants of Boston being confined within that town by the general their governor, and having, in order to procure their dismission, entered into a treaty with him, it was stipulated that the said inhabitants having deposited their arms with their own magistrates, should have liberty to depart, taking with them their other effects. They accordingly delivered up their arms, but in open violation of honor, in defiance of the obligation of treaties, which even savage nations esteemed sacred, the governor ordered the arms deposited as aforesaid, that they might be preserved for their owners, to be seized by a body of soldiers; detained the greatest part of the inhabitants in the town , and compelled the few who were permitted to retire, to leave their most valuable effects behind. …
The General, further emulating his ministerial masters, by a proclamation bearing date on the 12th day of June, after venting the grossest falsehoods and calumnies against the good people of these colonies, proceeds to “declare them all, either by name or description, to be rebels and traitors, to supersede the course of the common law, and instead thereof to publish and order the use and exercise of the law martial.”—His troops have butchered our countrymen, have wantonly burnt Charlestown, besides a considerable number of houses in other places; our ships and vessels are seized; the necessary supplies of provisions are intercepted, and he is exerting his utmost power to spread destruction and devastation around him.
We have received certain intelligence, that General Carleton, the Governor of Canada, is instigating the people of that province and the Indians to fall upon us; and we have but too much reason to apprehend, that schemes have been formed to excite domestic enemies against us. In brief, a part of these colonies now feel, and all of them are sure of feeling, as far as the vengeance of administration can inflict them, the complicated calamities of fire, sword, and famine. We are reduced to the alternative of choosing an unconditional submission to the tyranny of irritated ministers, or resistance by force.—The latter is our choice.—We have counted the cost of this contest, and find nothing so dreadful as voluntary slavery.—Honor, justice, and humanity, forbid us tamely to surrender that freedom which we received from our gallant ancestors, and which our innocent posterity have a right to receive from us. We cannot endure the infamy and guilt of resigning succeeding generations to that wretchedness which inevitably awaits them, if we basely entail hereditary bondage upon them.
Our cause is just. Our union is perfect. Our internal resources are great, and, if necessary, foreign assistance is undoubtedly attainable.— We gratefully acknowledge, as signal instances of the Divine favor towards us, that his Providence would not permit us to be called into this severe controversy, until we were grown up to our present strength, had been previously exercised in warlike operation, and possessed of the means of defending ourselves. With hearts fortified with these animating reflections, we most solemnly, before God and the world, declare, that, exerting the utmost energy of those powers, which our beneficent Creator has graciously bestowed upon us, the arms we have been compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverance, employ for the preservation of our liberties; being with one mind resolved to die freemen rather than to live slaves.
Lest this declaration should disquiet the minds of our friends and fellow-subjects in any part of the empire, we assure them that we mean not to dissolve that union which has so long and so happily subsisted between us, and which we sincerely wish to see restored.—Necessity has not yet driven us into that desperate measure, or induced us to excite any other nation to war against them.—We have not raised armies with ambitious designs of separating from Great-Britain, and establishing independent states. We fight not for glory or for conquest. We exhibit to mankind the remarkable spectacle of a people attacked by unprovoked enemies, without any imputation or even suspicion of offense. They boast of their privileges and civilization, and yet proffer no milder conditions than servitude or death.
In our own native land, in defense of the freedom that is our birthright, and which we ever enjoyed till the late violation of it—for the protection of our property, acquired solely by the honest industry of our forefathers and ourselves, against violence actually offered, we have taken up arms. We shall lay them down when hostilities shall cease on the part of the aggressors, and all danger of their being renewed shall be removed, and not before.
With an humble confidence in the mercies of the supreme and impartial Judge and Ruler of the Universe, we most devoutly implore his divine goodness to protect us happily through this great conflict, to dispose our adversaries to reconciliation on reasonable terms, and thereby to relieve the empire from the calamities of civil war.
The Declaration of Independence (1776)
In Congress, July 4, 1776,
THE UNANIMOUS DECLARATION OF THE THIRTEEN UNITED STATES OF AMERICA
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.—Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws of Naturalization of Foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offenses:
For abolishing the free System of English Laws in a neighboring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the United States of America, in General Congress Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
Virginia Bill of Rights
A Declaration of Rights (June 12th, 1776)
Made by the Representatives of the good People of Virginia, assembled in full and free Convention, which rights to pertain to them and their posterity as the basis and foundation of government.
I. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
II. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amendable to them.
III. That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that, when a government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.
IV. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services, which not being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary.
V. That the legislative, executive and judicial powers should be separate and distinct; and that the members thereof may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain and regular elections, in which all, or any part of the former members to be again eligible or ineligible, as the laws shall direct.
VI. That all elections ought to be free, and that all men having sufficient evidence of permanent common interest with, and attachment to the community have the right of suffrage, and cannot be taxed, or deprived of their property for public uses, without their own consent, or that of their representatives so elected, nor bound by any law to which they have not in like manner assented, for the public good.
VII. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.
VIII. That in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.
IX. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
X. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.
XI. That in controversies respecting property, and in suits between man and man, the ancient trial by jury of twelve men is preferable to any other, and ought to be held sacred.
XII. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.
XIII. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies in time of peace should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
XIV. That the people have a right to uniform government; and therefore, that no government separate from or independent of the government of Virginia, ought to be erected or established within the limits thereof.
XV. That no free government, or the blessing of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality and virtue, and by a frequent recurrence to fundamental principles.
XVI. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the duty of all to practice Christian forbearance, love and charity towards each other.
Thoughts on Government
My dear Sir,
If I was equal to the task of forming a plan for the government of a colony, I should be flattered with your request, and very happy to comply with it; because, as the divine science of politics is the science of social happiness, and the blessings of society depend entirely on the constitutions of government, which are generally institutions that last for many generations, there can be no employment more agreeable to a benevolent mind than a research after the best.
Pope flattered tyrants too much when he said,
Nothing can be more fallacious than this. But poets read history to collect flowers, not fruits; they attend to fanciful images, not the effects of social institutions. Nothing is more certain, from the history of nations and nature of man, than that some forms of government are better fitted for being well administered than others.
We ought to consider what is the end of government, before we determine which is the best form. Upon this point all speculative politicians will agree, that the happiness of society is the end of government, as all divines and moral philosophers will agree that the happiness of the individual is the end of man. From this principle it will follow, that the form of government which communicates ease, comfort, security, or, in one word, happiness, to the greatest number of persons, and in the greatest degree, is the best.
All sober inquirers after truth, ancient and modern, pagan and Christian, have declared that the happiness of man, as well as his dignity, consists in virtue. Confucius, Zoroaster, Socrates, Mahomet, not to mention authorities really sacred, have agreed in this.
If there is a form of government, then, whose principle and foundation is virtue, will not every sober man acknowledge it better calculated to promote the general happiness than any other form?
Fear is the foundation of most governments; but it is so sordid and brutal a passion, and renders men in whose breasts it predominates so stupid and miserable, that Americans will not be likely to approve of any political institution which is founded on it.
Honor is truly sacred, but holds a lower rank in the scale of moral excellence than virtue. Indeed, the former is but a part of the latter, and consequently has not equal pretensions to support a frame of government productive of human happiness.
The foundation of every government is some principle or passion in the minds of the people. The noblest principles and most generous affections in our nature, then, have the fairest chance to support the noblest and most generous models of government.
A man must be indifferent to the sneers of modern Englishmen, to mention in their company the names of Sidney, Harrington, Locke, Milton, Nedham, Neville, Burnet, and Hoadly. No small fortitude is necessary to confess that one has read them. The wretched condition of this country, however, for ten or fifteen years past, has frequently reminded me of their principles and reasonings. They will convince any candid mind, that there is no good government but what is republican. That the only valuable part of the British constitution is so; because the very definition of a republic is “an empire of laws, and not of men.” That, as a republic is the best of governments, so that particular arrangement of the powers of society, or, in other words, that form of government which is best contrived to secure an impartial and exact execution of the laws, is the best of republics.
Of republics there is an inexhaustible variety, because the possible combinations of the powers of society are capable of innumerable variations.
As good government is an empire of laws, how shall your laws be made? In a large society, inhabiting an extensive country, it is impossible that the whole should assemble to make laws. The first necessary step, then, is to depute power from the many to a few of the most wise and good. But by what rules shall you choose your representatives? Agree upon the number and qualifications of persons who shall have the benefit of choosing, or annex this privilege to the inhabitants of a certain extent of ground.
The principal difficulty lies, and the greatest care should be employed, in constituting this representative assembly. It should be in miniature an exact portrait of the people at large. It should think, feel, reason and act like them. That it may be the interest of this assembly to do strict justice at all times, it should be an equal representation, or, in other words, equal interests among the people should have equal interests in it. Great care should be taken to effect this, and to prevent unfair, partial, and corrupt elections. Such regulations, however, may be better made in times of greater tranquillity than the present; and they will spring up themselves naturally, when all the powers of government come to be in the hands of the people’s friends. At present, it will be safest to proceed in all established modes, to which the people have been familiarized by habit.
A representation of the people in one assembly being obtained, a question arises, whether all the powers of government, legislative, executive, and judicial, shall be left in this body? I think a people cannot be long free, nor ever happy, whose government is in one assembly. My reasons for this opinion are as follow:—
1. A single assembly is liable to all the vices, follies, and frailties of an individual; subject to fits of humor, starts of passion, flights of enthusiasm, partialities, or prejudice, and consequently productive of hasty results and absurd judgments. And all these errors ought to be corrected and defects supplied by some controlling power.
2. A single assembly is apt to be avaricious, and in time will not scruple to exempt itself from burdens, which it will lay, without compunction, on its constituents.
3. A single assembly is apt to grow ambitious, and after a time will not hesitate to vote itself perpetual. This was one fault of the Long Parliament; but more remarkably of Holland, whose assembly first voted themselves from annual to septennial, then for life, and after a course of years, that all vacancies happening by death or otherwise, should be filled by themselves, without any application to constituents at all.
4. A representative assembly, although extremely well qualified, and absolutely necessary, as a branch of the legislative, is unfit to exercise the executive power, for want of two essential properties, secrecy and despatch.
5. A representative assembly is still less qualified for the judicial power, because it is too numerous, too slow, and too little skilled in the laws.
6. Because a single assembly, posed of all the powers of government, would make arbitrary laws for their own interest, execute all laws arbitrarily for their own interest, and adjudge all controversies in their own favor.
But shall the whole power of legislation rest in one assembly? Most of the foregoing reasons apply equally to prove that the legislative power ought to be more complex; to which we may add, that if the legislative power is wholly in one assembly, and the executive in another, or in a single person, these two powers will oppose and encroach upon each other, until the contest shall end in war, and the whole power, legislative and executive, be usurped by the strongest.
The judicial power, in such case, could not mediate, or hold the balance between the two contending powers, because the legislative would undermine it. And this shows the necessity, too, of giving the executive power a negative upon the legislative, otherwise this will be continually encroaching upon that.
To avoid these dangers, let a distinct assembly be constituted, as a mediator between the two extreme branches of the legislature, that which represents the people, and that which is vested with the executive power.
Let the representative assembly then elect by ballot, from among themselves or their constituents, or both, a distinct assembly, which, for the sake of perspicuity, we will call a council. It may consist of any number you please, say twenty or thirty, and should have a free and independent exercise of its judgment, and consequently a negative voice in the legislature.
These two bodies, thus constituted, and made integral parts of the legislature, let them unite, and by joint ballot choose a governor, who, after being stripped of most of those badges of domination, called prerogatives, should have a free and independent exercise of his judgment, and be made also an integral part of the legislature. This, I know, is liable to objections; and, if you please, you may make him only president of the council, as in Connecticut. But as the governor is to be invested with the executive power, with consent of council, I think he ought to have a negative upon the legislative. If he is annually elective, as he ought to be, he will always have so much reverence and affection for the people, their representatives and counsellors, that, although you give him an independent exercise of his judgment, he will seldom use it in opposition to the two houses, except in cases the public utility of which would be conspicuous; and some such cases would happen.
In the present exigency of American affairs, when, by an act of Parliament, we are put out of the royal protection, and consequently discharged from our allegiance, and it has become necessary to assume government for our immediate security, the governor, lieutenant-governor, secretary, treasurer, commissary, attorney-general, should be chosen by joint ballot of both houses. And these and all other elections, especially of representatives and counsellors, should be annual, there not being in the whole circle of the sciences a maxim more infallible than this, “where annual elections end, there slavery begins.”
These great men, in this respect, should be, once a year,
This will teach them the great political virtues of humility, patience, and moderation, without which every man in power becomes a ravenous beast of prey.
This mode of constituting the great offices of state will answer very well for the present; but if by experiment it should be found inconvenient, the legislature may, at its leisure, devise other methods of creating them, by elections of the people at large, as in Connecticut, or it may enlarge the term for which they shall be chosen to seven years, or three years, or for life, or make any other alterations which the society shall find productive of its ease, its safety, its freedom, or, in one word, its happiness.
A rotation of all offices, as well as of representatives and counsellors, has many advocates, and is contended for with many plausible arguments. It would be attended, no doubt, with many advantages; and if the society has a sufficient number of suitable characters to supply the great number of vacancies which would be made by such a rotation, I can see no objection to it. These persons may be allowed to serve for three years, and then be excluded three years, or for any longer or shorter term.
Any seven or nine of the legislative council may be made a quorum, for doing business as a privy council, to advise the governor in the exercise of the executive branch of power, and in all acts of state.
The governor should have the command of the militia and of all your armies. The power of pardons should be with the governor and council.
Judges, justices, and all other officers, civil and military, should be nominated and appointed by the governor, with the advice and consent of council, unless you choose to have a government more popular; if you do, all officers, civil and military, may be chosen by joint ballot of both houses; or, in order to preserve the independence and importance of each house, by ballot of one house, concurred in by the other. Sheriffs should be chosen by the freeholders of counties; so should registers of deeds and clerks of counties.
All officers should have commissions, under the hand of the governor and seal of the colony.
The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The judges, therefore, should be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law. For misbehavior, the grand inquest of the colony, the house of representatives, should impeach them before the governor and council, where they should have time and opportunity to make their defence; but, if convicted, should be removed from their offices, and subjected to such other punishment as shall be proper.
A militia law, requiring all men, or with very few exceptions besides cases of conscience, to be provided with arms and ammunition, to be trained at certain seasons; and requiring counties, towns, or other small districts, to be provided with public stocks of ammunition and entrenching utensils, and with some settled plans for transporting provisions after the militia, when marched to defend their country against sudden invasions; and requiring certain districts to be provided with field-pieces, companies of matrosses, and perhaps some regiments of light-horse, is always a wise institution, and, in the present circumstances of our country, indispensable.
Laws for liberal education of youth, especially of the lower class of people, are so extremely wise and useful, that, to a humane and generous mind, no expense for this purpose would be thought extravagant.
The very mention of sumptuary laws will excite a smile. Whether our countrymen have wisdom and virtue enough to submit to them, I know not; but the happiness of the people might be greatly promoted by them, and a revenue saved sufficient to carry on this war forever. Frugality is a great revenue, besides curing us of vanities, levities, and fopperies, which are real antidotes to all great, manly, and warlike virtues.
But must not all commissions run in the name of a king? No. Why may they not as well run thus, “The colony of to A.B. greeting,” and be tested by the governor?
Why may not writs, instead of running in the name of the king, run thus, “The colony of to the sheriff,” &c., and be tested by the chief justice?
Why may not indictments conclude, “against the peace of the colony of and the dignity of the same”?
A constitution founded on these principles introduces knowledge among the people, and inspires them with a conscious dignity becoming freemen; a general emulation takes place, which causes good humor, sociability, good manners, and good morals to be general. That elevation of sentiment inspired by such a government, makes the common people brave and enterprising. That ambition which is inspired by it makes them sober, industrious, and frugal. You will find among them some elegance, perhaps, but more solidity; a little pleasure, but a great deal of business; some politeness, but more civility. If you compare such a country with the regions of domination, whether monarchical or aristocratical, you will fancy yourself in Arcadia or Elysium.
If the colonies should assume governments separately, they should be left entirely to their own choice of the forms; and if a continental constitution should be formed, it should be a congress, containing a fair and adequate representation of the colonies, and its authority should sacredly be confined to those cases, namely, war, trade, disputes between colony and colony, the post-office, and the unappropriated lands of the crown, as they used to be called.
These colonies, under such forms of government, and in such a union, would be unconquerable by all the monarchies of Europe.
You and I, my dear friend, have been sent into life at a time when the greatest lawgivers of antiquity would have wished to live. How few of the human race have ever enjoyed an opportunity of making an election of government, more than of air, soil, or climate, for themselves or their children! When, before the present epocha, had three millions of people full power and a fair opportunity to form and establish the wisest and happiest government that human wisdom can contrive? I hope you will avail yourself and your country of that extensive learning and indefatigable industry which you possess, to assist her in the formation of the happiest governments and the best character of a great people. For myself, I must beg you to keep my name out of sight; for this feeble attempt, if it should be known to be mine, would oblige me to apply to myself those lines of the immortal John Milton, in one of his sonnets:—
Massachusetts Constitution of 1780
The end of the institution, maintenance and administration of government, is to secure the existence of the body-politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquility, their natural rights, and the blessings of life: And whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.
The body-politic is formed by a voluntary association of individuals: It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a Constitution of Government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.
We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the Great Legislator of the Universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new Constitution of Civil Government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish, the following Declaration of Rights, and Frame of Government, as the constitution of the commonwealth of massachusetts.
PART THE FIRST
A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts
Art. i. —all men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
ii.—it is the right as well as the duty of all men in society, publicly, and at stated seasons, to worship the supreme being, the great creator and preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping god in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.
iii.—as the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of god, and of public instructions in piety, religion and morality: Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this Commonwealth have a right to invest their legislature with power to authorize and require, the several towns, parishes, precincts, and other bodies-politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of god, and for the support and maintenance of public protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.
And the people of this Commonwealth have also a right to, and do, invest their legislature with authority to enjoin upon all the subjects an attendance upon the instructions of the public teachers aforesaid, at stated times and seasons, if there be any on whose instructions they can conscientiously and conveniently attend.
Provided notwithstanding, that the several towns, parishes, precincts, and other bodies-politic, or religious societies, shall, at all times, have the exclusive right of electing their public teachers, and of contracting with them for their support and maintenance.
And all monies paid by the subject to the support of public worship, and of the public teachers aforesaid, shall, if he require it, be uniformly applied to the support of the public teacher or teachers of his own religious sect of denomination, provided there be any on whose instructions he attends: otherwise it may be paid towards the support of the teacher or teachers of the parish or precinct in which the said monies are raised.
And every denomination of christians, demeaning themselves peaceably, and as good subjects of the Commonwealth, shall be equally under the protection of the law: And no subordination of any one sect or denomination to another shall ever be established by law.
iv.—the people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may not hereafter, be by them expressly delegated to the United States of America, in Congress assembled.
v.—all power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.
vi.—no man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural.
vii.—government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men: Therefore the people alone have an incontestible, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.
viii.—in order to prevent those, who are vested with authority, from becoming oppressors, the people have a right, at such periods and in such manner as they shall establish by their frame of government, to cause their public officers to return to private life; and to fill up vacant places by certain and regular elections and appointments.
ix.—all elections ought to be free; and all the inhabitants of this Commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.
x.—each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and prosperity, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary: But no part of the property of any individual, can, with justice, be taken from him, or applied to public uses without his own consent, or that of the representative body of the people: In fine, the people of this Commonwealth are not controllable by any other laws, than those to which their constitutional representative body have given their consent. And whenever the public exigencies require, that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.
xi.—every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.
xii.—no subject shall be held to answer for any crime or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his council, at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate; but by the judgment of his peers, or the laws of the land.
And the legislature shall not make any law, that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury.
xiii.—in criminal prosecution, the verification of facts in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen.
xiv.—every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.
xv.—in all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high-seas, and such as relate to mariners wages, the legislature shall hereafter find it necessary to alter it.
xvi.—the liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this Commonwealth.
xvii.—the people have a right to keep and to bear arms for the common defence. And as in time of peace armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
xviii.—a frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty, and to maintain a free government: The people ought, consequently, to have a particular attention to all those principles, in the choice of their officers and representatives: And they have a right to require of their law-givers and magistrates, an exact and constant observance of them, in the formation and execution of the laws necessary for the good administration of the Commonwealth.
xix.—the people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives; and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.
xx.—the power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.
xxi.—the freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.
xxii.—the legislature ought frequently to assemble for the redress of grievances, for correcting, strengthening, and confirming the laws, and for making new laws, as the common good may require.
xxiii.—no subsidy, charge, tax, impost, or duties, ought to be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people, or their representatives in the legislature.
xxiv.—laws made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government.
xxv.—no subject ought, in any case, or in any time, to be declared guilty of treason or felony by the legislature.
xxvi.—no magistrate or court of law shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments.
xxvii.—in time of peace no soldier ought to be quartered in any house without the consent of the owner; and in time of war such quarters ought not to be made but by the civil magistrate, in a manner ordained by the legislature.
xxviii.—no person can in any case be subjected to law-martial, or to any penalties or pains, by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the legislature.
xxix.—it is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is therefore not only the best policy, but for the security of the rights of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.
xxx.—in the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.
PART THE SECOND
The Frame of Government
the people, inhabiting the territory formerly called the Province of Massachusetts-Bay, do hereby solemnly and mutually agree with each other, to form themselves into a free, sovereign, and independent body-politic or state, by the name of THE COMMONWEALTH OF MASSACHUSETTS.
The Legislative Power
The General Court
Art. i.—the department of legislation shall be formed by two branches, a Senate and House of Representatives: each of which shall have a negative on the other.
The legislative body shall assemble every year, on the last Wednesday in May, and at such other times as they shall judge necessary; and shall dissolve and be dissolved on the day next preceding the said last Wednesday in May; and shall be styled, the general court of massachusetts.
ii.—no bill or resolve of the Senate or House of Representatives shall become a law, and have force as such, until it shall have been laid before the Governor for his revisal: And if he, upon such revision, approve thereof, he shall signify his approbation by signing the same. But if he have any objection to the passing of such bill or resolve, he shall return the same, together with his objections thereto, in writing, to the Senate or House of Representatives, in which soever the same shall have originated; who shall enter the objections sent down by the Governor, at large, on their records, and proceed to reconsider the said bill or resolve: But if, after such reconsideration, two thirds of the said Senate or House of Representatives, shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and if approved by two thirds of the members present, shall have the force of a law: But in all such cases the votes of both houses shall be determined by yeas and nays; and the names of the persons voting for, or against, the said bill or resolve, shall be entered upon the public records of the Commonwealth.
And in order to prevent unnecessary delays, if any bill or resolve shall not be returned by the Governor within five days after it shall have been presented, the same shall have the force of a law.
iii.—the General Court shall forever have full power and authority to erect and constitute judicatories and courts of record, or other courts, to be held in the name of the Commonwealth, for the hearing, trying, and determining of all manner of crimes, offenses, pleas, processes, plaints, actions, matters, causes and things, whatsoever, arising or happening within the Commonwealth, or between or concerning persons inhabiting, or residing, or brought within the same; whether the same be criminal or civil, or whether the said crimes be capital or not capital, and whether the said pleas be real, personal, or mixed; and for the awarding and making out of execution thereupon: To which courts and judicatories are hereby given and granted full power and authority, from time to time, to administer oaths or affirmations, for the better discovery of truth in any matter in controversy or depending before them.
iv.—and further, full power and authority are hereby given and granted to the said General Court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this Constitution, as they shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof, and of the subjects of the same, and for the necessary support and defence of the government thereof; and to name and settle annually, or provide by fixed laws, for the naming and settling all civil officers within the said Commonwealth, the election and constitution of whom are not hereafter in this Form of Government otherwise provided for; and to set forth the several duties, powers and limits of the several civil and military officers of this Commonwealth, and the forms of such oaths or affirmations as shall be respectively administered unto them for the execution of their several offices and places, so as the same be not repugnant or contrary to this Constitution; and to impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and persons resident, and estates lying, within the said Commonwealth; and also to impose, and levy reasonable duties and excises, upon any produce, goods, wares, merchandize, and commodities whatsoever, brought into, produced, manufactured, or being within the same; to be issued and disposed of by warrant, under the hand of the Governor of this Commonwealth for the time being, with the advice and consent of the Council, for the public service, in the necessary defence and support of the government of the said Commonwealth, and the protection and preservation of the subjects thereof, according to such acts as are or shall be in force within the same.
And while the public charges of government, or any part thereof, shall be assessed on polls and estates, in the manner that has hitherto been practiced, in order that such assessments may be made with equality, there shall be a valuation of estates within the Commonwealth taken anew once in every ten years at least, and as much oftener as the General Court shall order.
Art. i—there shall be annually elected by the freeholders and other inhabitants of this Commonwealth, qualified as in this Constitution is provided, forty persons to be Counsellors and Senators for the year ensuing their election; to be chosen by the inhabitants of the districts, into which the Commonwealth may from time to time be divided by the General Court for that purpose: And the General Court, in assigning the numbers to be elected by the respective districts, shall govern themselves by the proportion of the public taxes paid by the said districts; and timely make known to the inhabitants of the Commonwealth, the limits of each district, and the number of Counsellors and Senators to be chosen therein; provided, that the number of such districts shall never be less than thirteen; and that no district be so large as to entitle the same to choose more than six Senators.
And the several counties in this Commonwealth shall, until the General Court shall determine it necessary to alter the said districts, be districts for the choice of Counsellors and Senators, (except that the counties of Dukes County and Nantucket shall form one district for that purpose) and shall elect the following number for Counsellors and Senators, viz:
ii.—the Senate shall be the first branch of the legislature; and the Senators shall be chosen in the following manner, viz: There shall be a meeting on the first Monday in April annually, forever, of the inhabitants of each town in the several counties of this Commonwealth; to be called by the Selectmen, and warned in due course of law, at least seven days before the first Monday in April, for the purpose of electing persons to be Senators and Counsellors. And at such meetings every male inhabitant of twenty-one years of age and upwards, having a freehold estate within the Commonwealth, of the annual income of three pounds, or any estate of the value of sixty pounds, shall have a right to give in his vote for the Senators for the district of which he is an inhabitant. And to remove all doubts concerning the meaning of the word “inhabitant” in this constitution, every person shall be considered as an inhabitant, for the purpose of electing and being elected into any office, or place within this State, in that town, district, or plantation, where he dwelleth, or hath his home.
The Selectmen of the several towns shall preside at such meetings impartially; and shall receive the votes of all the inhabitants of such towns present and qualified to vote for Senators, and shall sort and count them in open town meeting, and in presence of the Town Clerk, who shall make a fair record in presence of the Selectmen, and in open town meeting, of the name of every person voted for, and of the number of votes against his name; and a fair copy of this record shall be attested by the Selectmen and the Town-Clerk, and shall be sealed up, directed to the Secretary of the Commonwealth for the time being, with a superscription, expressing the purport of the contents thereof, and delivered by the Town-Clerk of such towns, to the Sheriff of the county in which such town lies, thirty days at least before the last Wednesday in May annually; or it shall be delivered into the Secretary’s office seventeen days at least before the said last Wednesday in May, and the Sheriff of each county shall deliver all such certifications by him received, in to the Secretary’s office seventeen days before the said last Wednesday in May.
And the inhabitants of plantations unincorporated, qualified as this Constitution provides, who are or shall be empowered and required to assess taxes upon themselves toward the support of government, shall have the same privilege of voting for Counsellors and Senators, in the plantations where they reside, as town inhabitants have in their respective towns; and the plantation-meetings for that purpose shall be held annually on the same first Monday in April, at such place in the plantations respectively, as the Assessors thereof shall direct; which Assessors shall have like authority for notifying the electors, collecting and returning the votes, as the Selectmen and Town-Clerks have in their several towns, by this Constitution. And all other persons living in places unincorporated (qualified as aforesaid) who shall be assessed to the support of government by the Assessors of an adjacent town, shall have the privilege of giving in their votes for Counsellors and Senators, in the town where they shall be assessed, and be notified of the place of meeting by the Selectmen of the town where they shall be assessed, for that purpose, accordingly.
iii.—and that there may be a due convention of Senators on the last Wednesday in May annually, the Governor, with five of the Council, for the time being, shall, as soon as may be, examine the returned copies of such records; and fourteen days before the said day he shall issue his summons to such persons as shall appear to be chosen by a majority of voters, to attend on that day, and take their seats accordingly: Provided nevertheless, that for the first year the said returned copies shall be examined by the President and five of the Council of the former Constitution of Government; and the said President shall, in like manner, issue his summons to the persons so elected, that they may take their seats as aforesaid.
iv.—the Senate shall be the final judge of the elections, returns and qualifications of their own members, as pointed out in the Constitution; and shall, on the said last Wednesday in May annually, determine and declare who are elected by each district, to be Senators, by a majority of votes: And in case there shall not appear to be the full number of Senators returned elected by a majority of votes for any district, the deficiency shall be supplied in the following manner, viz. The members of the House of Representatives, and such Senators as shall be declared elected, shall take the names of such persons as shall be found to have the highest votes in each district, and not elected, amounting to twice the number of Senators wanting, if there be so many voted for; and, out of these, shall elect by ballot a number of Senators sufficient to fill up the vacancies in such district: And in this manner all such vacancies shall be filled up in every district of the Commonwealth; and in like manner all vacancies in the Senate, arising by death, removal out of the State, or otherwise, shall be supplied as soon as may be after such vacancies shall happen.
v.—provided nevertheless, that no person shall be capable of being elected as a Senator, who is not seized in his own right of a freehold within this Commonwealth, of the value of three hundred pounds at least, or of both to the amount of the same sum, and who has not been an inhabitant of this Commonwealth for the space of five years immediately preceding his election, and, at the time of his election, he shall be an inhabitant in the district, for which he shall be chosen.
vi.—the Senate shall have power to adjourn themselves, provided such adjournments do not exceed two days at a time.
vii.—the Senate shall choose its own President, appoint its own officers, and determine its own rules of proceeding.
viii.—the Senate shall be a court with full authority to hear and determine all impeachments made by the House of Representatives, against any officer or officers of the Commonwealth, for misconduct and mal-administration in their offices. But, previous to the trial of every impeachment, the members of the Senate shall respectively be sworn, truly and impartially to try and determine the charge in question, according to evidence. Their judgment, however, shall not extend further than to removal from office and disqualification to hold or enjoy any place of honor, trust, or profit, under this Commonwealth: But the party, so convicted, shall be, nevertheless, liable to indictment, trial, judgment, and punishment, according to the laws of the land.
ix.—not less than sixteen members of the Senate shall constitute a quorum for doing business.
House of Representatives
Art. i—there shall be in the legislature of this Commonwealth, a representation of the people, annually elected, and founded upon the principle of equality.
ii.—and in order to provide for a representation of the citizens of this Commonwealth, founded upon the principle of equality, every corporate town, containing one hundred and fifty rateable polls, may elect one Representative: Every corporate town, containing three hundred and seventy-five rateable polls, may elect three Representatives; and proceeding in that manner, making two hundred and twenty-five rateable polls the mean increasing number for every additional Representative.
Provided nevertheless, that each town incorporated, not having one hundred and fifty rateable polls, may elect one Representative: but no place shall hereafter be incorporated with the privilege of electing a Representative, unless there are within the same one hundred and fifty rateable polls.
And the House of Representatives shall have power, from time to time, to impose fines upon such towns as shall neglect to choose and return members to the same, agreeably to this Constitution.
The expenses of travelling to the General Assembly, and returning home, once in every session, and no more, shall be paid by the government, out of the public treasury, to every member who shall attend as seasonably as he can, in the judgment of the House, and does not depart without leave.
iii.—every member of the House of Representatives shall be chosen by written votes; and for one year at least next preceding his election shall have been an inhabitant of, and have been seized in his own right of a freehold of the value of one hundred pounds within the town he shall be chosen to represent, or any rateable estate to the value of two hundred pounds; and he shall cease to represent the said town immediately on his ceasing to be qualified as aforesaid.
iv.—every male person, being twenty-one years of age, and resident in any particular town in this Commonwealth for the space of one year next preceding, having a freehold estate within the same town, of the annual income of three pounds, or any estate of the value of sixty pounds, shall have a right to vote in the choice of a Representative or Representatives for the said town.
v.—the members of the House of Representatives shall be chosen annually in the month of May, ten days at least before the last Wednesday of that month.
vi.—the House of Representatives shall be the Grand Inquest of this Commonwealth; and all impeachments made by them shall be heard and tried by the Senate.
vii.—all money-bills shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills.
viii.—the House of Representatives shall have power to adjourn themselves; provided such adjournment shall not exceed two days at a time.
ix.—not less than sixty members of the House of Representatives shall constitute a quorum for doing business.
x.—the House of Representatives shall be the judge of the returns, elections, and qualifications of its own members, as pointed out in the constitution; shall choose their own Speaker; appoint their own officers, and settle the rules and orders of proceeding in their own house: They shall have authority to punish by imprisonment, every person, not a member, who shall be guilty of disrespect to the House, by any disorderly, or contemptuous behavior, in its presence; or who, in the town where the General Court is sitting, and during the time of its sitting, shall threaten harm to the body or estate of any of its members, for any thing said or done in the House; or who shall assault any of them therefor; or who shall assault, or arrest, any witness, or other person, ordered to attend the House, in his way in going, or returning; or who shall rescue any person arrested by the order of the House.
No member of the House of Representatives shall be arrested, or held to bail on mean process, during his going unto, returning from, or his attending, the General Assembly.
xi.—the Senate shall have the same powers in the like cases; and the Governor and Council shall have the same authority to punish in like cases. Provided, that no imprisonment on the warrant or order of the Governor, Council, Senate, or House of Representatives, for either of the above described offenses, be for a term exceeding thirty days.
And the Senate and House of Representatives may try, and determine all cases where their rights and privileges are concerned, and which, by the Constitution, they have authority to try and determine, by committees of their own members, or in such other way as they may respectively think best.
Art. i.—there shall be a Supreme Executive Magistrate, who shall be styled, the governor of the commonwealth of massachusetts, and whose title shall be—his excellency.
ii.—the Governor shall be chosen annually: And no person shall be eligible to this office, unless at the time of his election, he shall have been an inhabitant of this Commonwealth for seven years next preceding; and unless he shall, at the same time, be seized in his own right, of a freehold within the Commonwealth, of the value of one thousand pounds; and unless he shall declare himself to be of the christian religion.
iii.—those persons who shall be qualified to vote for Senators and Representatives within the several towns of this Commonwealth, shall, at a meeting, to be called for that purpose, on the first Monday of April annually, give in their votes for a Governor, to the Selectmen, who shall preside at such meetings; and the Town Clerk, in the presence and with the assistance of the Selectmen, shall, in open town meeting, sort and count the votes, and form a list of the persons voted for, with the number of votes for each person against his name; and shall make a fair record of the same in the town books, and a public declaration thereof in the said meeting; and shall, in the presence of the inhabitants, seal up copies of the said list, attested by him and the Selectmen, and transmit the same to the Sheriff of the county, thirty days at least before the last Wednesday in May; and the Sheriff shall transmit the same to the Secretary’s office seventeen days at least before the said last Wednesday in May; or the Selectmen may cause returns of the same to be made to the office of the Secretary of the Commonwealth seventeen days at least before the said day; and the Secretary shall lay the same before the Senate and the House of Representatives, on the last Wednesday in May, to be by them examined: And in case of an election by a majority of all the votes returned, the choice shall be by them declared and published: But if no person shall have a majority of votes, the House of Representatives shall, by ballot, elect two out of four persons who had the highest number of votes, if so many shall have been voted for; but, if otherwise, out of the number voted for; and make return to the Senate of the two persons so elected; on which, the Senate shall proceed, by ballot, to elect one, who shall be declared Governor.
iv.—the Governor shall have authority, from time to time, at his discretion, to assemble and call together the Counsellors of this Commonwealth for the time being; and the Governor, with the said Counsellors, or five of them at least, shall, and may, from time to time, hold and keep a Council, for the ordering and directing the affairs of the Commonwealth, agreeably to the Constitution and the laws of the land.
v.—the Governor, with advice of Council, shall have full power and authority, during the session of the General Court, to adjourn to prorogue the same to any time the two Houses shall desire; to dissolve the same on the day next preceding the last Wednesday in May; and, in the recess of the said Court, to prorogue the same from time to time, not exceeding ninety days in any one recess; and to call it together sooner than the time to which it may be adjourned or prorogued, if the welfare of the Commonwealth shall require the same: And in case of any infectious distemper prevailing in the place where the said Court is next at any time to convene, or any other cause happening whereby danger may arise to the health or lives of the members from their attendance, he may direct the session to be held at some other the most convenient place within the State.
And the Governor shall dissolve the said General Court on the day next preceding the last Wednesday in May.
vi.—in cases of disagreement between the two Houses, with regard to the necessity, expediency or time of adjournment, or prorogation, the Governor, with advice of the Council, shall have a right to adjourn or prorogue the General Court, not exceeding ninety days, as he shall determine the public good shall require.
vii.—the Governor of this Commonwealth, for the time being, shall be the commander-in-chief of the army and navy, and of all the military forces of the State, by sea and land; and shall have full power, by himself, or by any commander, or other officer or officers, from time to time, to train, instruct, exercise and govern the militia and navy; and, for the special defense and safety of the Commonwealth, to assemble in martial array, and put in warlike posture, the inhabitants thereof, and to lead and conduct them, and with them, to encounter, repel, resist, expel and pursue, by force of arms, as well by sea as by land, within or without the limits of this Commonwealth, and also to kill, slay and destroy, if necessary, and conquer, by all fitting ways, enterprises and means whatsoever, all and every such person and persons as shall, at any time hereafter, in a hostile manner, attempt or enterprize the destruction, invasion, detriment, or annoyance of this Commonwealth; and to use and exercise, over the army and navy, and over the militia in actual service, the law martial, in time of war or invasion, and also in time of rebellion, declared by the legislature to exist, as occasion shall necessarily require; and to take and surprise by all ways and means whatsoever, all and every such person or persons, with their ships, arms, ammunition and other goods, as shall, in a hostile manner, invade, or attempt the invading, conquering, or annoyance of this Commonwealth; and that the Governor be intrusted with all these and other powers, incident to the offices of Captain-General and Commander-in-Chief, and Admiral, to be exercised agreeably to the rules and regulations of the Constitution, and the laws of the land, and not otherwise.
Provided, that the said Governor shall not, at any time hereafter, by virtue of any power by this Constitution granted, or hereafter to be granted to him by the legislature, transport any of the inhabitants of this Commonwealth, or oblige them to march out of the limits of the same, without their free and voluntary consent, or the consent of the General Court; except so far as may be necessary to march or transport them by land or water, for the defence of such part of the State, to which they cannot otherwise conveniently have access.
viii.—the power of pardoning offenses, except such as persons may be convicted of before the Senate by an impeachment of the House, shall be in the Governor, by and with the advice of Council. But no charter of pardon, granted by the Governor, with advice of Council, before conviction, shall avail the party pleading the same, notwithstanding any general or particular expressions contained therein, descriptive of the offence, or offenses intended to be pardoned.
ix.—all judicial officers, the Attorney-General, the Solicitor-General, all Sheriffs, Coroners, and Registers of Probate, shall be nominated and appointed by the Governor, by and with the advice and consent of the Council; and every such nomination shall be made by the Governor, and made at least seven days prior to such appointment.
x.—the Captains and subalterns of the militia shall be elected by the written votes of the train-band and alarm list of their respective companies, of twenty-one years of age and upwards: The field-officers of Regiments shall be elected by the written votes of the captains and subalterns of their respective regiments: The Brigadiers shall be elected in like manner, by the field officers of their respective brigades: And such officers, so elected, shall be commissioned by the Governor, who shall determine their rank.
The Legislature shall, by standing laws, direct the time and manner of convening the electors, and of collecting votes, and of certifying to the Governor the officers elected.
The Major-Generals shall be appointed by the Senate and House of Representatives, each having a negative upon the other; and be commissioned by the Governor.
And if the electors of Brigadiers, field-officers, captains or subalterns, shall neglect or refuse to make such elections, after being duly notified, according to the laws for the time being, then the Governor, with advice of Council, shall appoint suitable persons to fill such offices.
And no officer, duly commissioned to command in the militia, shall be removed from his office, but by the address of both houses to the Governor, or by fair trial in court martial, pursuant to the laws of the Commonwealth for the time being.
The commanding officers of regiments shall appoint their Adjutants and Quarter-masters; the Brigadiers their Brigade-Majors; and the Major-Generals their Aids: and the Governor shall appoint the Adjutant General.
The Governor, with advice of Council, shall appoint all officers of the continental army, whom by the confederation of the United States it is provided that this Commonwealth shall appoint,—as also all officers of forts and garrisons.
The divisions of the militia into brigades, regiments and companies, made in pursuance of the militia laws now in force, shall be considered as the proper divisions of the militia of this Commonwealth, until the same shall be altered in pursuance of some future law.
xi.—no monies shall be issued out of the treasury of this Commonwealth, and disposed of (except such sums as may be appropriated for the redemption of bills of credit of Treasurer’s notes, or for the payment of interest arising thereon) but by warrant under the hand of the Governor for the time being, with the advice and consent of the Council, for the necessary defence and support of the Commonwealth; and for the protection and preservation of the inhabitants thereof, agreeably to the acts and resolves of the General Court.
xii.—all public boards, the Commissary-General, all superintending officers of public magazines and stores, belonging to this Commonwealth, and all commanding officers of forts and garrisons within the same, shall, once in every three months, officially and without requisition, and at other times, when required by the Governor, deliver to him an account of all goods, stores, provisions, ammunition, cannon with their appendages, and small arms with their accoutrements, and of all other public property whatever under their care respectively; distinguishing the quantity, number, quality and kind of each, as particularly as may be; together with the condition of such forts and garrisons: And the said commanding officer shall exhibit to the Governor, when required by him, true and exact plans of such forts, and of the land and sea, or harbours adjacent.
And the said boards, and all public officers, shall communicate to the Governor, as soon as may be after receiving the same, all letters, dispatches, and intelligences of a public nature, which shall be directed to them respectively.
xiii.—as the public good requires that the Governor should not be under the undue influence of any of the members of the General Court, by a dependence on them for his support—that he should, in all cases, act with freedom for the benefit of the public—that he should not have his attention necessarily diverted from that object to his private concerns—and that he should maintain the dignity of the Commonwealth in the character of its chief magistrate—it is necessary that he should have an honorable stated salary, of a fixed and permanent value, amply sufficient for those purposes, and established by standing laws: And it shall be among the first acts of the General Court, after the Commencement of this Constitution, to establish such salary by law accordingly.
Permanent and honorable salaries shall also be established by law for the Justices of the Supreme Judicial Court.
And if it shall be found, that any of the salaries aforesaid, so established, are insufficient, they shall, from time to time, be enlarged, as the General Court shall judge proper.
Art. i.—there shall be annually elected a Lieutenant-Governor of the Commonwealth of Massachusetts, whose title shall be his honor—and who shall be qualified, in point of religion, property, and residence in the Commonwealth, in the same manner with the Governor: And the day and manner of his election, and the qualifications of the electors, shall be the same as are required in the election of a Governor. The return of the votes for this officer, and the declaration of his election, shall be in the same manner: And if no one person shall be found to have a majority of all the votes returned, the vacancy shall be filled by the Senate and House of Representatives, in the same manner as the Governor is to be elected, in case no one person shall have a majority of the votes of the people to be Governor.
ii.—the Governor, and in his absence the Lieutenant-Governor, shall be President of the Council, but shall have no vote in the Council: And the Lieutenant-Governor shall always be a member of the Council, except when the chair of the Governor shall be vacant.
iii.—whenever the chair of the Governor shall be vacant, by reason of his death, or absence from the Commonwealth, or otherwise, the Lieutenant-Governor, for the time being, shall, during such vacancy, perform all the duties incumbent upon the Governor, and shall have and exercise all the powers and authorities, which by this Constitution the Governor is vested with, when personally present.
Council, and the Manner of Settling Elections by the Legislature
Art. i.—there shall be a Council for advising the Governor in the executive part of government, to consist of nine persons besides the Lieutenant-Governor, whom the Governor, for the time being, shall have full power and authority, from time to time, at his discretion, to assemble and call together. And the Governor, with the said Counsellors, or five of them at least, shall and may, from time to time, hold and keep a council, for the ordering and directing the affairs of the Commonwealth, according to the laws of the land.
ii.—nine Counsellors shall be annually chosen from among the persons returned for Counsellors and Senators, on the last Wednesday in May, by the joint ballot of the Senators and Representatives assembled in one room: And in case there shall not be found, upon the first choice, the whole number of nine persons who will accept a seat in the Council, the deficiency shall be made up by the electors aforesaid from among the people at large; and the number of Senators left shall constitute the Senate for the year. The seats of the persons thus elected from the Senate, and accepting the trust, shall be vacated in the Senate.
iii.—the Counsellors, in the civil arrangements of the Commonwealth, shall have rank next after the Lieutenant-Governor.
iv.—not more than two Counsellors shall be chosen out of any one district of this Commonwealth.
v.—the resolutions and advice of the Council shall be recorded in a register, and signed by the members present; and this record may be called for at any time by either House of the Legislature; and any member of the Council may insert his opinion contrary to the resolution of the majority.
vi.—whenever the office of the Governor and Lieutenant-Governor shall be vacant, by reason of death, absence, or otherwise, then the Council or the major part of them, shall, during such vacancy, have full power and authority, to do, and execute, all and every such acts, matters and things, as the Governor or the Lieutenant-Governor might or could, by virtue of this Constitution, do or execute, if they, or either of them, were personally present.
vii.—and whereas the elections appointed to be made by this Constitution, on the last Wednesday in May annually, by the two Houses of the Legislature, may not be completed on that day, the said elections may be adjourned from day to day until the same shall be completed. And the order of elections shall be as follows; the vacancies in the Senate, if any, shall first be filled up; the Governor and Lieutenant-Governor shall then be elected, provided there should be no choice of them by the people: And afterwards the two Houses shall proceed to the election of the Council.
Secretary, Treasurer, Commissary, etc.
Art. i.—the Secretary, Treasurer and Receiver-General, and the Commissary-General, Notaries-Public, and Naval-Officers, shall be chosen annually, by joint ballot of the Senators and Representatives in one room. And that the citizens of this Commonwealth may be assured, from time to time, that the monies remaining in the public Treasury, upon the settlement and liquidation of the public accounts, are their property, no man shall be eligible as Treasurer and Receiver-General more than five years successively.
ii.—the records of the Commonwealth shall be kept in the office of the Secretary, who may appoint his Deputies, for whose conduct he shall be accountable, and he shall attend the Governor and Council, the Senate and House of Representatives, in person, or by his deputies, as they shall respectively require.
Art. i.—the tenure that all commission officers shall by law have in their offices, shall be expressed in their respective commissions. All judicial officers, duly appointed, commissioned and sworn, shall hold their offices during good behavior, excepting such concerning whom there is different provision made in this Constitution: Provided, nevertheless, the Governor, with consent of the Council, may remove them upon the address of both Houses of the Legislature.
ii.—each branch of the Legislature, as well as the Governor and Council, shall have authority to require the opinions of the Justices of the Supreme Judicial Court, upon important questions of law, and upon solemn occasion.
iii.—in order that the people may not suffer from the long continuance in place of any Justice of the Peace, who shall fail of discharging the important duties of his office with ability or fidelity, all commissions of Justice of the Peace shall expire and become void, in the term of seven years from their respective dates; and, upon the expiration of any commission, the same may, if necessary, be renewed, or another person appointed, as shall most conduce to the well being of the Commonwealth.
iv.—the Judges of Probate of Wills, and for granting letters of administration, shall hold their courts at such place or places, on fixed days, as the convenience of the people shall require. And the Legislature shall, from time to time, hereafter appoint such times and places; until which appointments, the said Courts shall be holden at the times and places which the respective Judges shall direct.
v.—all causes of marriage, divorce and alimony, and all appeals from the Judges of Probate, shall be heard and determined by the Governor and Council until the Legislature shall, by law, make other provision.
Delegates to Congress
The delegates of this Commonwealth to the Congress of the United States, shall, sometime in the month of June annually, be elected by the joint ballot of the Senate and House of Representatives, assembled together in one room; to serve in Congress for one year, to commence on the first Monday in November then next ensuing. They shall have commissions under the hand of the Governor, and the great seal of the Commonwealth; but may be recalled at any time within the year, and others chosen and commissioned, in the same manner, in their stead.
The University at Cambridge, and Encouragement of Literature, etc.
Art. i.—whereas our wise and pious ancestors, so early as the year one thousand six hundred and thirty six, laid the foundation of Harvard-College, in which University many persons of great eminence have, by the blessing of god, been initiated in those arts and sciences, which qualified them for public employments, both in Church and State: And whereas the encouragement of Arts and Sciences, and all good literature, tends to the honor of god, the advantage of the christian religion, and the great benefit of this, and the other United States of America—It is declared, That the president and fellows of harvard-college, in their corporate capacity, and their successors in that capacity, their officers and servants, shall have, hold, use, exercise and enjoy, all the powers, authorities, rights, liberties, privileges, immunities and franchises, which they now have, or are entitled to have, hold, use, exercise and enjoy: And the same are hereby ratified and confirmed unto them, the said President and Fellows of Harvard-College, and to their successors, and to their officers and servants, respectively, forever.
ii.—and whereas there have been at sundry times, by divers persons, gifts, grants, devises of houses, lands, tenements, goods, chattels, legacies and conveyances, heretofore made, either to Harvard-College in Cambridge, in New-England, or to the President and Fellows of Harvard-College, or to the said College, by some other description, under several charters successively: it is declared, That all the said gifts, grants, devises, legacies and conveyances, are hereby forever confirmed unto the President and Fellows of Harvard-College, and to their successors, in the capacity aforesaid, according to the true intent and meaning of the donor or donors, grantor or grantors, devisor or devisors.
iii.—and whereas by an act of the General Court of the Colony of Massachusetts-Bay, passed in the year one thousand six hundred and forty-two, the Governor and Deputy-Governor, for the time being, and all the magistrates of that jurisdiction, were, with the President, and a number of the clergy in the said act described, constituted the Overseers of Harvard-College: And it being necessary, in this new Constitution of Government, to ascertain who shall be deemed successors to the said Governor, Deputy-Governor and Magistrates: it is declared, That the Governor, Lieutenant-Governor, Council and Senate of this Commonwealth, are, and shall be deemed, their successors; who, with the President of Harvard-College, for the time being, together with the ministers of the congregational churches in the towns of Cambridge, Watertown, Charlestown, Boston, Roxbury, and Dorchester, mentioned in the said act, shall be, and hereby are, vested with all the powers and authority belonging, or in any way appertaining to the Overseers of Harvard-College; provided, that nothing herein shall be construed to prevent the Legislature of this Commonwealth from making such alterations in the government of the said university, as shall be conducive to its advantage, and the interest of the republic of letters, in as full a manner as might have been done by the Legislature of the late Province of the Massachusetts-Bay.
The Encouragement of Literature, etc.
Wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislators and magistrates, in all future periods of this Commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools, and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humour, and all social affections, and generous sentiments among the people.
Oaths and Subscriptions; Incompatibility of an Exclusion from Offices; Pecuniary Qualifications; Commissions; Writs; Confirmation of Laws; Habeas Corpus; The Enacting Style; Continuance of Officers; Provision for a future Revisal of the Constitution, etc.
Art. i.—any person chosen Governor, Lieutenant-Governor, Counselor, Senator, or Representative, and accepting the trust, shall, before he proceed to execute the duties of his place or office, make and subscribe the following declaration, viz.—
“I, A. B. do declare, that I believe the christian religion, and have a firm persuasion of its truth; and that I am seized and possessed, in my own right, of the property required by the Constitution as one qualification for the office or place to which I am elected.”
And the Governor, Lieutenant-Governor, and Counsellors, shall make and subscribe the said declaration, in the presence of the two Houses of Assembly; and the Senators and Representatives first elected under this constitution, before the President and five of the Council of the former Constitution, and, forever afterwards, before the Governor and Council for the time being.
And every person chosen to either of the places or offices aforesaid, as also any person appointed or commissioned to any judicial, executive, military, or other office under the government, shall, before he enters on the discharge of the business of his place or office, take and subscribe the following declaration, and oaths or affirmations, viz.—
“I, A. B. do truly and sincerely acknowledge, profess, testify and declare, that the Commonwealth of Massachusetts is, and of right ought to be, a free, sovereign and independent State; and I do swear, that I will bear true faith and allegiance to the said Commonwealth, and that I will defend the same against traitorous conspiracies and all hostile attempts whatsoever: And that I do renounce and adjure all allegiance, subjection and obedience to the King, Queen or Government of Great Britain, (as the case may be) and every other foreign power whatsoever: And that no foreign Prince, Person, Prelate, State or Potentate, hath, or ought to have, any jurisdiction, superiority, pre-eminence, authority, dispensing or other power, in any matter, civil, ecclesiastical or spiritual, within this Commonwealth; except the authority and power which is or may be vested by their Constituents in the Congress of the United States: And I do further testify and declare, that no man or body of men hath or can have any right to absolve or discharge me from the obligation of this oath, declaration or affirmation; and that I do make this acknowledgment, profession, testimony, declaration, denial, renunciation and abjuration, heartily and truly, according to the common meaning and acceptation of the foregoing words, without any equivocation, mental evasion, or secret reservation whatsoever. So help me god.”
“I, A. B. do solemnly swear and affirm, that I will faithfully and impartially discharge and perform all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the rules and regulations of the Constitution, and the laws of this Commonwealth.” “So help me god.”
Provided always, that when any person, chosen or appointed as aforesaid, shall be of the denomination of the people called Quakers, and shall decline taking the said oaths, he shall make his affirmation in the foregoing form, and subscribe the same, omitting the words “I do swear,” “and adjure,” “oath or,” “and abjuration,” in the first oath; and in the second oath, the words “swear and;” and in each of them the words “So help megod;” subjoining instead thereof, “This I do under the pains and penalties of perjury.”
And the said oaths or affirmations shall be taken and subscribed by the Governor, Lieutenant Governor, and Counsellors, before the President of the Senate, in the presence of the two Houses of Assembly; and by the Senators and Representatives first elected under this Constitution, before the President and five of the Council of the former Constitution; and forever afterwards before the Governor and Council for the time being: And by the residue of the officers aforesaid, before such persons and in such manner as from time to time shall be prescribed by the Legislature.
ii.—No Governor, Lieutenant Governor, or Judge of the Supreme Judicial Court, shall hold any other office or place, under the authority of this Commonwealth, except such as by this Constitution they are admitted to hold, saving that the Judges of the said Court may hold the offices of Justices of the Peace through the State; nor shall they hold any other place or office, or receive any pension or salary from any other State or Government or Power whatever.
No person shall be capable of holding or exercising at the same time, within this State, more than one of the following offices, viz:—Judge of Probate—Sheriff—Register of Deeds—and never more than any two offices which are to be held by appointment of the Governor, or the Governor and Council, or the Senate, or the House of Representatives, or by the election of the people of the State at large, or of the people of any county, military offices and the offices of Justices of the Peace excepted, shall be held by one person.
No person holding the office of Judge of the Supreme Judicial Court— Secretary—Attorney General—Solicitor General—Treasurer or Receiver General—Judge of Probate—Commissionary General—President, Professor, or Instructor of Harvard College—Sheriff—Clerk of the House of Representatives—Register of Probate—Register of Deeds—Clerk of the Supreme Judicial Court—Clerk of the Inferior Court of Common Pleas— or Officer of the Customs, including in this description Naval Officers— shall at the same time have a seat in the Senate or House of Representatives; but their being chosen or appointed to, and accepting the same, shall operate as a resignation of their seat in the Senate or House of Representatives; and the place so vacated shall be filled up.
And the same rule shall take place in case any judge of the said Supreme Judicial Court, or Judge of Probate, shall accept a seat in Council; or any Counsellor shall accept of either of those offices or places.
And no person shall ever be admitted to hold a seat in the Legislature, or any office of trust or importance under the Government of this Commonwealth, who shall, in the due course of law, have been convicted of bribery or corruption in obtaining an election or appointment.
iii.—in all cases where sums of money are mentioned in this Constitution, the value thereof shall be computed in silver at six shillings and eight pence per ounce: And it shall be in the power of the Legislature from time to time to increase such qualifications, as to property, of the persons to be elected to offices, as the circumstances of the Commonwealth shall require.
iv.—all commissions shall be in the name of the Commonwealth of Massachusetts, signed by the Governor, and attested by the Secretary or his Deputy, and have the great seal of the Commonwealth affixed thereto.
v.—all writs, issuing out of the clerk’s office in any of the Courts of law, shall be in the name of the Commonwealth of Massachusetts: They shall be under the seal of the Court from whence they issue: They shall bear test of the first Justice of the Court to which they shall be returnable, who is not a party, and be signed by the clerk of such court.
vi.—all the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts Bay, and usually practiced on in the Courts of law, shall still remain and be in full force, until altered or repealed by the Legislature; such parts only excepted as are repugnant to the rights and liberties contained in this Constitution.
vii.—the privilege and benefit of the writ of habeas corpus shall be enjoyed in this Commonwealth in the most free, easy, cheap, expeditious and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding twelve months.
viii.—the enacting style, in making and passing all acts, statutes and laws, shall be—“Be it enacted by the Senate and House of Representatives, in General Court assembled, and by the authority of the same.”
ix.—to the end there may be no failure of justice or danger arise to the Commonwealth from a change of the Form of Government—all officers, civil and military, holding commissions under the government and people of Massachusetts Bay in New-England, and all other officers of the said government and people, at the time this Constitution shall take effect, shall have, hold, use, exercise and enjoy all the powers and authority to them granted or committed, until other persons shall be appointed in their stead: And all courts of law shall proceed in the execution of the business of their respective departments; and all the executive and legislative officers, bodies and powers shall continue in full force, in the enjoyment and exercise of all their trusts, employments and authority; until the General Court and the supreme and executive officers under this Constitution are designated and invested with their respective trusts, powers and authority.
x.—in order the more effectually to adhere to the principles of the Constitution, and to correct those violations which by any means may be made therein, as well as to form such alterations as from experience shall be found necessary—the General Court, which shall be in the year of our Lord one thousand seven hundred and ninety-five, shall issue precepts to the Selectmen of the several towns, and to the Assessors of the unincorporated plantations, directing them to convene the qualified voters of their respective towns and plantations for the purpose of collecting their sentiments on the necessity or expediency of revising the Constitution, in order to amendments.
And if it shall appear by the returns made, that two thirds of the qualified voters throughout the State, who shall assemble and vote in consequence of the said precepts, are in favor of such revision or amendment, the General Court shall issue precepts, or direct them to be issued from the Secretary’s office to the several towns, to elect Delegates to meet in Convention for the purpose aforesaid.
The said Delegates to be chosen in the same manner and proportion as their Representatives in the second branch of the Legislature are by this Constitution to be chosen.
xi.—this form of government shall be enrolled on parchment, and deposited in the Secretary’s office, and be a part of the laws of the land—and printed copies thereof shall be prefixed to the book containing the laws of this Commonwealth, in all future editions of the said laws.
samuel barrett, Secretary
james bowdoin, President
Articles of Confederation (1778)
To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our names send greeting. Whereas the Delegates of the United States of America in Congress assembled did on the fifteenth day of November in the Year of our Lord One Thousand Seven Hundred and Seventy seven, and in the Second Year of the Independence of America agree to certain articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia in the Words following, viz. “Articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia.
Art. I. The Stile of this confederacy shall be “The United States of America.”
Art. II. Each State retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.
Art. III. The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their Liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.
Art. IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from Justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, provided that such restriction shall not extend so far as to prevent the removal of property imported into any State, to any other State of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.
If any Person guilty of, or charged with treason, felony, or other high misdemeanor in any State, shall flee from Justice, and be found in any of the United States, he shall upon demand of the Governor or executive power, of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offence.
Full faith and credit shall be given in each of these States to the records, acts and judicial proceedings of the courts and magistrates to every other State.
Art. V. For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State, to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the Year.
No State shall be represented in Congress by less than two, nor by more than seven Members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit receives any salary, fees or emolument of any kind.
Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States.
In determining questions in the United States, in Congress assembled, each State shall have one vote.
Freedom of speech and debate in Congress shall not be impeached or questioned in any Court, or place out of Congress, and the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance of Congress, except for treason, felony, or breach of the peace.
Art. VI. No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, or alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office or title of any kind whatever from any King, Prince or foreign State; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.
No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.
No State shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled, with any King, Prince or State, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain.
No vessels of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defence of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State; but every State shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.
No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay, till the United States in Congress assembled can be consulted: nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled, and then only against the kingdom or State and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise.
Art. VII. When land-forces are raised by any State for the common defence, all officers of or under the rank of colonel, shall be appointed by the legislature of each State respectively by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.
Art. VIII. All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State, granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled.
Art. IX. The United States in Congress assembled shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article—of sending and receiving ambassadors—entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever—of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated—of granting letters of marque and reprisal in times of peace—appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.
The United States in congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other cause whatever; which authority shall always be exercised in the manner following: Whenever the legislative or executive authority or lawful agent of any State in controversy with another shall present a petition to Congress, stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question; but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names as Congress shall direct, shall in the presence of Congress be drawn out by lot, and the persons whose names shall be so drawn or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination; and if either party shall neglect to attend at the day appointed, without showing reasons which Congress shall judge sufficient, or being present shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear to defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgment, which shall in like manner be final and decisive, the judgment or sentence and other proceedings being in either case transmitted to Congress, and lodged among the Acts of Congress for the security of the parties concerned: provided that every commissioner, before he sits in judgment, shall take an oath to be administered by one of the judges of the supreme or superior court of the State, where the cause shall be tried, “well and truly to hear and determine the matter in question, according to the best of his judgment, without favor, affection or hope of reward”: provided also that no State shall be deprived of territory for the benefit of the United States.
All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions as they may respect such lands, and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States.
The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States—fixing the standard of weights and measures throughout the United States.— regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated—establishing and regulating post-offices from one State to another, throughout all the United States, and exacting such postage on the papers passing thro’ the same as may be requisite to defray the expenses of the said office— appointing all officers of the land forces, in the service of the United States, excepting regimental officers—appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States—making rules for the government and regulation of the said land and naval forces, and directing their operations.
The United States in Congress assembled shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated “A Committee of the States,” and to consist of one delegate from each State; and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction—to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses—to borrow money, or emit bills on the credit of the United States, transmitting every half year to the respective States an account of the sums of money so borrowed or emitted—to build and equip a navy—to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be binding, and thereupon the legislature of each State shall appoint the regimental officers, raise the men and cloath, arm and equip them in a soldier like manner, at the expense of the United States, and the officers and men so cloathed, armed and equipped shall march to the place appointed, and within the time agreed on by the United States in Congress assembled. But if the United States in Congress assembled shall, on consideration of circumstances, judge proper that any State should not raise men, or should raise a smaller number than its quota, and that any other State should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, cloathed, armed and equipped in the same manner as the quota of such State, unless the legislature of such State shall judge that such extra number cannot be safely spared out of the same, in which case they shall raise officers, cloath, arm and equip as many of such extra number as they judge can be safely spared. And the officers and men so cloathed, armed and equipped, shall march to the place appointed, and within the time agreed on by the United States in Congress assembled.
The United States in Congress assembled shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine States assent to the same; nor shall a question on any other point, except for adjourning from day to day be determined, unless by the votes of a majority of the United States in Congress assembled.
The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the Journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations as in their judgment require secrecy; and the yeas and nays of the delegates of each State on any question shall be entered on the Journal, when it is desired by any delegate; and the delegates of a State, or any of them, at his or their request shall be furnished with a transcript of the said Journal, except such parts as are above excepted, to lay before the legislatures of the several States.
Art. X. The Committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by the consent of nine States, shall from time to time think expedient to vest them with; provided that no power be delegated to the said committee, for the exercises of which, by the articles of confederation, the voice of nine States in the Congress of the United States assembled is requisite.
Art. XI. Canada acceding to this confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this union; but no other colony shall be admitted into the same, unless such admission be agreed to by nine States.
Art. XII. All bills of credit emitted, monies borrowed and debts contracted by, or under the authority of Congress, before the assembling of the United States, in pursuance of the present confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States, and the public faith are hereby solemnly pledged.
Art. XIII. Every State shall abide by the determinations of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.
and whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said articles of confederation and perpetual union. know ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said articles of confederation and perpetual union, and all and singular the matters and things therein contained. And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said confederation are submitted to them. And that the articles thereof shall be inviolably observed by the States we respectively represent, and that the union shall be perpetual. In Witness whereof we have hereunto set our hands in Congress. Done at Philadelphia in the State of Pennsylvania the ninth Day of July in the Year of our Lord one Thousand seven Hundred and Seventy-eight, and in the third year of the independence of America.
It was a provision in the charters of the Virginia settlers granted by James I in 1606 and 1609, and in the charter to the colonists of Massachusetts in 1629; of the Province of Maine in 1639; of Connecticut in 1662; of Rhode Island in 1663; of Maryland in 1632; of Carolina in 1663; and of Georgia in 1732; that they and their posterity should enjoy the same rights and liberties which Englishmen were entitled to at home. Such privileges were implied by the law, without any express reservation.
James Kent, Commentaries on American Law (1826)
Formal declarations of rights, drawn from the common law, were incorporated in the earliest colonial legislation. Plymouth Colony, in the first of these, enumerated, among other privileges, that justice should be impartially and promptly administered, with trial by jury, and that no person should suffer in life, limb, liberty, good name, or estate, but by due process of law. Connecticut, in 1639, adopted an act closely similar. New York enacted, in 1691, that no freeman should be deprived of any rights, or liberties, or condemned, save by the judgment of his peers or the law of the land; that no tax should be levied except by act of the legislature in which the colonists were represented. … Massachusetts, in 1641, promulgated a Body of Liberties. … In like manner, declaration of rights was made by the legislature of Virginia in 1624 and 1676; by the legislature of Pennsylvania in 1682; of Maryland in 1639 and 1650; and of Rhode Island in 1663; and also by the proprietaries of Carolina in 1667, and of New Jersey in 1664, 1683, and at other dates. The assembly of Maryland of 1638–1639 declared Magna Carta to be the measure of their liberties.
Ellis Stevens, Sources of the Constitution of the United States (1927)