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Colonial Governments - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Colonial Governments

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?