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73: Act Relating to the Biennial and Other Assemblies and Regulating Elections and Members in North Carolina - Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History [1998]

Edition used:

Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998).

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73

Act Relating to the Biennial and Other Assemblies and Regulating Elections and Members in North Carolina

Text taken from William L. Saunders, ed., The Colonial Records of North Carolina, vol. 2 (Raleigh, 1958), 213–16.

1715

Established in 1664/1665, the province of Carolina developed two widely separated settlements. Proprietary interest was focused on the Charles Town settlement in the south, with its fine port, while the northern settlement, centered in Albemarle County, received little attention. The document below deals with the northeastern part of the province of Carolina—what is now known as North Carolina. Each settlement was granted its own unicameral legislature under the original proprietary concessions, and both settlements were dominated by a council appointed from London. The provincial governor lived in the south, and his deputy governor served in the north. In 1669 John Locke and Anthony Cooper composed the Fundamental Constitutions of Carolina at the behest of the proprietors. Rather than resembling Locke’s system in Two Treatises of Government, it instead used Harrington’s complex system of representation based on the ownership of various amounts of property. Among other things, the Locke/Cooper document created more political offices than there were settlers. Parts of the proposal, which served as the basis for government until 1698, were adopted anyway. By this time North and South Carolina had come to be viewed as completely separate entities. In 1712 North Carolina received its own governor. In the 1715 document reproduced below, North Carolina established the form of government it would basically use until 1776. The document is notable for establishing clear districts and a careful electoral process.

Whereas his Excellency the Palatine and the rest of the true and absolute lords proprietors of Carolina, having duly considered the privileges and immunities wherewith kingdom of Great Britain is induced and being desirous that this their province may have such as may thereby enlarge this settlement and that the frequent sitting of assemblies is a principal safeguard of their peoples privileges, have thought fit to enact.

And be it enacted by the said Palatine and Lords Proprietors, by and with the advice and consent of the present Grand Assembly now met at Little River for the northeast part of the said province, and it is hereby enacted, that for the due election and constituting of members of the biennial and other assemblies, it shall be lawful for the freemen of the respective precincts of Albemarle to meet the first Tuesday in September every two years in the places hereafter mentioned, that is to say, the inhabitants of Chowan at the land laid out for a town on the fork of Queen Anne’s Creek, the inhabitants of Perquimons at the upper side of the mouth of Suttons Creek, the inhabitants of Pasquotank at the plantation now in possession of Mr. Joseph Glaister on New Begunn Creek, the inhabitants of Currituck at the plantation of Mr. Thomas Vandermulin, the inhabitants of Beaufort in Bath in Bath Town, the inhabitants of Hyde precinct at the plantation at Mr. Websterson’s the west side of Matchapungo, a river, the inhabitants of Craven at Swift’s plantation at the mouth of Handock’s Creek, the inhabitants of New Bern at the town so called, and then there to choose such members as are to sit in that Assembly, which shall be five freeholders out of every precinct in Albemarle County aforesaid.

And be it further enacted that it shall and may be lawful for the inhabitants and freemen in each precinct in every other county or counties that now is or shall be hereafter erected in this government aforesaid to meet as aforesaid at such place as shall be adjudged most convenient by the marshal of such county, unless he be otherwise ordered by the special commands of the Governor or Commander-in-Chief, to choose two freeholders out of every precinct in the county aforesaid to sit and vote in the said Assembly.

And be it further enacted that the burgesses so chosen in each precinct for the biennial Assembly shall meet and sit the first Monday in November then next following, every two years at the same place the assembly last sat, except the Palatines’ Court shall, by their proclamation published twenty days before the said meeting, appoint some other place; and there, with the consent and concurrence of the Palatines’ Court, shall make and ordain laws as shall be thought most necessary for the good of this government.

Provided always, and nevertheless, that the powers granted to the Lords Proprietors from the crown of calling, proroguing, and dissolving Assemblies are not hereby meant or intended to be invaded, limited, or restrained.

And it is hereby further enacted, by the authority aforesaid, that no person whatsoever, inhabitant of this government, born out of the allegiance of his Majesty and not made free, no Negro, Mulatto, or Indians shall be capable of voting for members of the Assembly and that no other person or persons shall be allowed or admitted to vote for members of Assembly in the government unless he be of the age of one and twenty years and has been one full year resident in the government and has paid one year’s levy preceeding the election.

And be it further enacted that all persons offering to vote for members of Assembly shall bring a list to the marshal or deputy taking the poll containing the names of the persons he votes for and shall subscribe his own name or cause the same to be done. And if any such person or persons shall be suspected either by the marshall or any other candidates not to be qualified according to the true intent and meaning of this act then the marshal, deputy marshal, or other officer that shall be appointed to take and receive such votes or lists shall have power to administer an oath or attestation to every suspected person of his qualification and ability to choose members of Assembly and whether he has not before given in his list at that election.

And be it further enacted that every officer or marshal which shall admit of or take the vote of any person not truly qualified according to the purport and meaning of this act, provided the objection be made by any candidate or inspector, or shall make undue return of any person for member of Assembly, shall forfeit, for such vote taken and admitted and for such returns, twenty pounds, to be employed for and toward the building of any court house, church, or chapels as the governor for the time being shall think fit; but if no such building require it, then to the lords proprietors, and twenty pounds to each person of right and by a majority of votes ought to have been returned, to be recovered by action of debt, bill, plaint, or information in any court of record in this government wherein no essoin, wager of law, or protection shall be allowed or admitted.

And be it further enacted that every marshall or officer whose business and duty it is to make return of elections of members of Assembly shall attend the Assembly the first three days of their sitting, unless he have leave of the assembly to depart, to inform the Assembly of all matters and disputes as shall arise about elections and shall show to the Assembly the list of the votes for every person returned and have made complaint of false returns to the Assembly. And every marshal or other officer, as aforesaid, which shall deny and refuse to attend as aforesaid shall forfeit the sum of twenty pounds, to be recovered and disposed of in such manner and form as the forfeitures before by this act appointed.

And be it further enacted that whatsoever representative, so elected as aforesaid, shall fail in making his personal appearance and giving his attendance at the Assembly precisely at the day limited by the writ or on the day appointed for the meeting of the biennial Assembly, when the election is for a biennial Assembly, shall be fined for every day’s absence during the sitting of the Assembly, twenty shilling, to be seized by a warrant from the Speaker and so to be applied to such uses as the lower house of Assembly shall think fit.

And be it further enacted that every member of the Assembly that shall be elected as aforesaid after the ratifying this act shall not be qualified to sit as a member in the House of Burgesses before he shall willingly take the oath of allegiance and supremacy, the abjuration oath, and all such other oaths as shall be ordered and directed to be taken by the members of Parliament in Great Britain.1

And be it further enacted that the quorum of the House of Burgesses for voting and passing up bills shall not be less than one full half of the House and that no bill shall be signed and ratified except there be present eight of the members, whereof the Speaker to be one; and in case eight members shall meet at any Assembly those eight shall have full power to adjourn from day to day till sufficient number can assemble to transact the business of government.

Charles Eden

N. Chevin

C. Gale

Francis Foster

T. Knight

Edward Mosely, Speaker

74

Act to Ascertain the Manner and Form of Electing Members to Represent the Province

The text is taken from T. Cooper, ed., Statutes at Large of South Carolina, vol. 3 (Columbia, 1837), 135–40.

1721

By 1721 the government of South Carolina had evolved to the point where the local legislature was a fully functioning institution. Most of the foundation documents of South Carolina—like those of Virginia, North Carolina, and Georgia—had been written and adopted in London, and for this reason there are few that qualify for inclusion in this collection. As each of these four colonies reached the point of self-governance equivalent to that achieved in colonies further to the north, a refounding occurred through acts by the legislature. These acts usually took the form of defining electoral districts, the electoral process, and the relationship between the parts of the legislature and between the legislature and the governor. On the one hand, the institutional structures of the southern colonies had to a striking degree come to resemble those found in the northern colonies. On the other hand, political realities during the development of the southern colonies did not allow as much room for independent local development. Thus, while the institutions were similar up and down the coast, the theory underlying their design was less robust in the south than that articulated in New England and Pennsylvania in particular. As a result, while post-1775 state constitutions had much in common, the theory used to justify the Revolution and undergird later American constitutional development had been rehearsed in public to a far greater extent in the north than in the south—especially in foundation documents. Still, these arguments resonated everywhere in America.

Whereas the choosing members of the Commons House of Assembly for this province by parishes or precincts has been found by experience to be the most just and least expensive method that can be devised, and approaches nearest to the form and method of choosing or electing members in other his Majesty’s dominions and plantations, and not liable to the inconveniencies that attend any other method heretofore used or practiced in this province; therefore, for preserving the same inviolable, we humbly pray your most sacred Majesty that it may be enacted,

i. And be it enacted by his Excellency Francis Nicholson, Esq., Governor, etc., by and with the advice and consent of his Majesty’s honorable Council and the Assembly of this province, and by the authority of the same, that the persons who shall be chosen to serve as members of Assembly after the ratification of this act shall be elected and chosen after the manner and at the places appointed by this act.

ii. And be it further enacted, by the authority aforesaid, that all writs for the future elections of members of Assembly shall be issued out by the Governor and Council for the time being, and shall bear date forty days before the day appointed for the meeting of the said members, and shall be directed to the church warden or church wardens of the several parishes hereafter named, or in case there should be wanted church wardens in any parish then to such other proper persons as the Governor and Councill shall think fit to nominate in the said writs to manage such elections, every one of whom are hereby empowered and required to execute the said writs faithfully according to the true intent and meaning of this act, to which every person shall be sworn by any one justice of the peace for the county, who is hereby required to administer such oath without fee or reward and shall give public notice in writing of all and every such writs two Sundays before the appointed time of election at the door of each parish church, or at some other public place as shall be appointed in the said writs in such parishes as have yet no churches erected, to the intent the time and place of election may be better and more fully made known; which writs shall be executed upon the same days at all places where elections are appointed.

iii. And be it further enacted, by the authority aforesaid, that every free white man, and no other person, professing the christian religion, who has attained to the age of one and twenty years and has been a resident and an inhabitant in this province for the space of one whole year before the date of the writs for the election he offers to give his vote at, and has a freehold of at least 50 acres of land, or has been taxed in the precedent year twenty shillings, or is taxed twenty shillings the year present to the support of this government, shall be deemed a person qualified to vote for and may be capable of electing a representative or representatives to serve as a member or members of the Commons House of Assembly for the parish or precinct wherein he actually is a resident, or in any other parish or precincts wherein he has the like qualification.

iv. And for the preventing of frauds in all elections as much as possible, it is hereby enacted, by the authority aforesaid, that the names of the electors for members of the Commons House of Assembly shall be fairly entered in a book or roll, for that purpose provided by the churchwardens or other persons appointed for managing elections, to prevent any person’s voting twice at the same election; and the manner of their voting shall be as herein after is directed, shall put into a box, glass, or sheet of paper, prepared for that purpose by the said church wardens or other persons, as is above directed, a piece of paper rolled up, wherein is written the names of the representatives he votes for, and to which paper the elector shall not be obliged to subscribe his name; and if upon the scrutiny two or more papers with persons written thereon for members of Assembly be found rolled up together, or more person’s names be found written in any paper than ought to be voted for, all and every such paper or papers shall be invalid and of no effect; and that those persons who, after all the papers and votes are delivered in and entered as aforesaid, shall be found, upon the scrutiny made, to have the majority of votes, are and shall be deemed and declared to be members of the succeeding Commons House of Assembly, so as they be qualified as is hereinafter directed.

v. And be it further enacted, by the authority aforesaid, that the said election shall not continue longer than two days and that the said elections shall begin at nine in the morning and end at four in the evening, and that at adjourning of the poll at convenient hours, in the time of the aforesaid election the church wardens, or other persons, as foresaid, empowered to manage the said elections, shall seal up the said box, glass, or paper wherein are put all the votes then delivered in and rolled up by the electors, as aforesaid, with their own seals and the seals of any two or more of the electors that are there present, and upon opening the poll shall unseal the said box, glass, or paper in the presence of the said electors, in order to proceed in the said elections.

vi. And be it further enacted, by the authority aforesaid, that the said church wardens, or other persons appointed in each parish to manage the elections aforesaid, shall, within seven days after the scrutiny is made, give public notice in writing at the church door, or at such other public places in the parishes that have no churches where the election was made, to the person or persons so elected that the inhabitants of the said parish have made choice of him or them to serve as their representative or representatives in the next succeeding Commons House of Assembly, under the penalty of one hundred pounds current money of this province for his default or neglect therein, to be recovered and disposed of in such manner and form as is hereafter in this act directed.

vii. And be it further enacted, by the authority aforesaid, that the inhabitants of the several parishes in this province qualified to vote for members of Assembly, as is before in this act directed, shall, upon the day of the election, according to the Governor’s and Council’s precept for the time being, meet at their respective parish churches, or at some other public place in such parishes as have not yet any churches erected in them, as shall be appointed by the said precept, and there proceed to choose their representatives according to the number following; that is to say, the parish of St. Philip’s Charlestown, five members; for the parish of Christ church, two members; for the parish of St. John’s three members; for the parish of St. Andrew’s, three members; for the parish of St. George’s two members; for the parish of St. James Goose Creek, four members; for the parish of St. Thomas and St. Dennis, three members, the election to be made at the parish church of St. Thomas; for the parish of St. Paul’s four members; for the parish of St. Bartholomew’s, at such place in the said parish as shall be appointed by the governor and Council’s precept, until the parish church is erected, four members; for the parish of St. Helena, four members, the election to be made at Beauford in the said parish; and for the parish of St. James Santee, with Winyaw, two members. And the said several members who, upon a scrutiny, are found to have the majority of votes, so as they are qualified as is hereinafter directed, shall be and they are hereby declared and adjudged to be the true representatives for the said parish.

viii. And be it further enacted, by the authority aforesaid, that every person who shall be elected and returned, as is before directed by this act, to serve as a member of the Commons House of Assembly, shall be qualified as follows; viz., he shall be a free born subject of the kingdom of Great Britain, or of the dominion thereunto belonging, or a foreign person naturalized by act of Parliament in Great Britain or Ireland, that has attained to the age of twenty-one years, and has been resident in this province for twelve months before the date of the said writs; and having in this province a settled plantation or freehold, in his own right, of a leave 500 acres of land, and ten slaves, or has in his own proper person and in his own right, to the value of 1,000 in houses, buildings, town lots, or other lands in any part of this province.

ix. And be it further enacted, by the authority aforesaid, that any of his Majesty’s justices of the peace returned to serve as a member of the said Commons House of Assembly shall read over to the rest of the members returned to serve in the said house, before they be admitted to sit as such, the last mentioned qualifying clause, and then each member, before he be admitted to sit as such in the said house, shall take the following oath on the holy evangelists. I, AB, do sincerely swear that I am duly qualified to be chosen and serve as a member of the Commons House of Assembly of this province for the parish of    , according to the true intent and meaning of this act. So help me God.

x. And be it further enacted, by the authority aforesaid, that if any member or members hereafter chosen to serve in any Commons House of Assembly should die or depart this province, or refuse to qualify him of themselves as in this act directed, or be expelled by the said House of Commons, then and in such cases the said House shall by message to the Governor and Council for the time being desire them to issue out a new writ or writs, and the said Governor and Council shall, on such a message to them presented, issue out a new writ or writs, directed as before in this act is appointed, for choosing another person or persons to serve in the place or places of such member or members so dead or departed this province, or who shall refuse to qualify him or themselves, or be expelled as aforesaid. Which person or persons, so chosen and summoned as before directed, shall attend the Commons House of Assembly, as by the precept is directed, under the same fines and penalties the several church wardens or other persons appointed to manage elections according to the directions of this act are liable to the said act.

xi. And be it further enacted, by the authority aforesaid, that all and every member and members of the Commons House of Assembly of this province, chosen by virtue of this act, shall have as much power and privilege to all intents and purposes as any member or members of the Commons House of Assembly of this province heretofore of right had, might, could, or ought to have in the said province; provided the same are such as are according to his Majesty’s thirty-fifth instruction.

xii. And be it further enacted, by the authority aforesaid, that if any person or persons appointed by this act to manage any election for a member or members of the Commons House of Assembly, as aforesaid, shall willingly or knowingly admit of or take the vote of any person not qualified according to the purpose of this act, or, after any vote delivered in at such election, shall open or suffer any person whatsoever to open any such vote before the scrutiny is begun to be made, or shall make an undue return of any person for a member of the Commons House of Assembly, each person so offending, shall forfeit for each such vote taken and admitted of, opened, or suffered to be opened, as aforesaid, and for each such return, the sum of one hundred pounds current money of this province, to be recovered and disposed of in such manner and form as hereafter in this act is directed.

xiii. And be it further enacted, by the authority aforesaid, that all and every person or persons appointed to take votes, or to manage elections of members to serve in the Commons House of Assembly, as aforesaid, shall for that purpose attend at the time and place of election according as he or they are directed by the said writs and attend likewise on the said Commons House of Assembly the two first days of their sitting, unless he or they have leave sooner to depart, to inform them of all such matters and disputes that did arise or may have arisen about the election of any member or members to serve as aforesaid, or at any place or places where the same was or were appointed to be managed, and shall show to said House the list of the votes of every person returned to be a representative to serve as aforesaid, or which otherwise ought to have been returned as such, if any complaint of a false return has been made to the Commons House of Assembly; and every person appointed to take votes, as aforesaid, who shall omit or refuse to attend at either of the times and places, as aforesaid, shall forfeit the sum of ten pounds current money of this province, to be recovered and disposed of in such manner and form as is hereafter directed by this act.

xiv. And be it further enacted, by the authority aforesaid, that if any person or persons whatsoever shall, on any day appointed for the election of a member or members of the Commons House of Assembly as aforesaid, presume to violate the freedom of the said election by any arrest, menaces, or threats, or endeavor or attempt to over-awe, fright, or force any person qualified to vote against his inclination or conscience, or otherwise by bribery obtain any vote, or who shall, after the said election is over, menace, despitefully use, or abuse any person because he has not voted as he or they would have had him, every such person so offending, upon due and sufficient proof made of such his violence or abuse, menacing or threatening, before any two justices of the peace, shall be bound over to the next general sessions of the peace, himself in fifty pounds current money of this province, and two sureties, each in twenty-five pounds of like money, and to be of good behaviour, and abide the sentence of the said court, where, if the offender or offenders are convicted and found guilty of such offense or offenses, as aforesaid, then he or they shall each of them forfeit the sum of fifty pounds current money of this province, and be committed to jail without bail mainprize till the same be paid; which fine so imposed shall be paid unto one of the church wardens of the parish where the offense was committed for the use of the poor thereof; and if any person offending as aforesaid shall be chosen a member of the Commons House of Assembly, after conviction of illegal practices proved before the said House, shall by a vote of the said House be rendered uncapable to sit or vote as a member of that Commons House of Assembly.

xv. And be it further enacted, by the authority aforesaid, that no civil officer whatsoever shall execute any writs or other civil process whatsoever upon the body of any person qualified to vote for members of the Commons House of Assembly, as before in this act is directed, either in his journey to or in his return from the place of such election, or during his stay there on that account, or within forty-eight hours after the scrutiny for such elections is finished, under the penalty of twenty pounds current money of his province, to be recovered of and from the officer which shall arrest or serve any process, as aforesaid, after such manner and form and to be disposed of as hereinafter is directed; and all such writs or warrants executed on the body of any person either going to or being at, within the time limited by this clause, or returning from the place of such election is appointed to be managed, he being qualified to give in his vote thereat, are hereby declared void and null.

xvi. And be it further enacted, by the authority aforesaid, that every justice of the peace who shall refuse or neglect to do his duty in and by this act enjoined and required shall, for every default, forfeit the sum of one hundred pounds current money of this province, to be recovered and disposed of as is hereinafter directed by this act.

xvii. And be it further enacted, by the authority aforesaid, that in any succeeding Commons House of Assembly, no less than nineteen members duly met shall make an House to transact the business of the same; and for passing any law therein, there shall not be less than ten affirmatives; nor shall a less number than seven members of the said House met together have power to adjourn, which number are hereby declared to have power, in the absence of the speaker, to choose a chairman to adjourn the members from day to day and to summon by their messenger any absenting member or members to appear and give their attention in the said House.

xviii. But forasmuch as, by the great distance of the habitation of several of the members of Charlestown, through bad weather and other accidents it may often happen that such a number may not meet to make an adjournment, be it, therefore, enacted, by the authority aforesaid, that in case none of the members of the Commons House of Assembly, or a less number than seven of them, should appear in the said House according to the directions of the writs appointing their first meeting; or to their last prorogation or adjournment, that then and in such case it shall be and it is hereby declared lawful for the governor for the time being, with the advice and consent of his council, to name a further day for the meeting of the said Commons House of Assembly, and that the said House shall not be dissolved by their not meeting as aforesaid, any law, custom, or usage to the contrary thereof in anyway notwithstanding.

xix. And be it further enacted, by the authority aforesaid, that whosoever for the future shall be elected a member to serve in the Commons House of Assembly, before he be permitted to sit and vote in the said house, shall further qualify himself for the same by taking the usual oaths and make and sign the declaration appointed by several acts of Parliament of Great Britain.

xx. And be it further enacted, by the authority aforesaid, that all the fines and forfeitures mentioned in this act and not before particularly disposed of, the one-half thereof shall be to his Majesty for the use of the poor of the parish of St. Philip’s Charlestown, to be paid to the church wardens of the said parish, and the other half to him or them that will sue for the same by action of debt, suit, bill, plaint, or information in any court of record in this province, wherein no essoign, protection, privilege, or wager of law, or stay of protection shall be admitted or allowed of.

xxi. And be it further enacted by the authority aforesaid, that this present General Assembly shall determine and be dissolved at the expiration of three years next after the date of the writs issued out for calling the same, and that every General Assembly hereafter called by virtue of any writs, as aforesaid, shall determine and be dissolved every three years next after the date of the respective writs by which they were called, except sooner dissolved by the Governor.

xxii. And be it further enacted, by the authority aforesaid, that the sitting and holding of General Assemblies shall not be discontinued or intermitted above six months, but shall within that time, from and after the determination of this or any other General Assembly, or oftener if occasion require, new writs to be issued out by the Governor for the time being for calling, assembling, and holding of another General Assembly.

xxiii. And be it further enacted and declared that this present Assembly, having been elected and called together by virtue of his Majesty’s royal commissions and instructions to his Excellency Francis Nicholson, Esq., his Majesty’s Governor and Commander-in-Chief of this his province of South Carolina, shall in all things whatsoever be deemed and held to be a true and lawful Assembly, and all acts and ordinances duly passed by them, by and with the consent of his Majesty’s honorable Council and assented to by his Excellency, shall be deemed and accounted laws and orders of the said province, anything in any former act of this province heretofore made notwithstanding.

xxiv. And be it further enacted, by the authority aforesaid, that all former acts of Assembly of this province relating to or concerning the elections of the members to serve in the Commons House of Assembly be, from and after the ratification of this act, repealed, and they are hereby declared void and repealed.

James Moore,

Speaker

Charlestown, [...] 19, 1721.

Assented to by Francis Nicholson, Governor

75

Act to Ascertain the Manner and Form of Electing Members to Represent the Inhabitants of This Province in the Commons House of Assembly

The text is taken from W. S. Jenkins and L. A. Hamrick, eds., Microfilm Collection of Early State Records, Georgia, B.2 Reel 1a, 1735–1772.

June 9, 1761

Established by charter in 1732, Georgia was initially governed by a board of trustees in London with no provision for either a governor or a legislature. An appointed governor was in place by 1743, but an assembly was not authorized until 1751, and even then it had no real power. In 1752 the trusteeship ended and Georgia reverted to a royal colony. At this point the Crown established institutions similar to those found in the other royal colonies. In 1761 the Georgia legislature passed the act in this document to define the electoral basis underlying their government. It is very similar to the act passed by South Carolina in 1721 [74]. One feature of the present document is that it clearly describes a method of voting used throughout the colonies and reveals that votes were public rather than secret. It was not considered unusual for voters to be asked to “stand up and be counted.” The secret ballot was not widely used in America until the late nineteenth century. The precise definition and careful protection of the electoral process implies that the people are the foundation of government. The care taken here and in other colonial documents in this regard indicates that the concept of the electoral process is at least emerging, if not already accepted. One needs to remember that elections were rare in the world at this time, and rules for running them are in the process of being worked out in documents like this one.

Whereas the manner and form of choosing members of the Commons House of Assembly to represent the inhabitants of this province and the qualifications of electors and those elected members of the Commons House of Assembly has never yet been appointed, fixed, and determined by any law of this province. We, therefore, pray your most sacred Majesty that it may be enacted. And be it enacted by his Honor James Wright, Esquire, Lieutenant-Governor and Commander-in-Chief of this his Majesty’s province of Georgia, by and with the advice and consent of the honorable Council and the Commons House of Assembly of the said province in General Assembly met, and by the authority of the same, that from and after the passing of this act all writs for the election of members of the Commons House of Assembly shall be issued out by the Governor or Commander-in-Chief for the time being with the consent of the Council and shall bear test forty days before the day appointed for the meeting of the said members and shall be directed to the provost marshal in the said writs to cause such elections to be made and to return the names of the persons elected to be members of the Commons House of Assembly. And the provost marshal is hereby empowered and required to execute such writ to him directed and, for the faithful and due performance of which according to the true intent and meaning of this act, the provost marshal shall cause public notice in writing to be affixed at one or more noted place or places in such parish, district, town, or village for which the election of a member or members by him is to be taken, at least ten days before the day of election, of the time and place where such election is by him to be taken.

ii. And be it further enacted, by the authority aforesaid, that every free white man, and no other, who has attained to the age of twenty-one years and has been resident in the province six months and is legally possessed in his own right of fifty acres of land in the said parish, district, town, or village for which the member or members is or are to be elected to represent in the General Assembly, shall be deemed a person qualified for electing a representative or representatives to serve as member or members of the Commons House of Assembly for the parish, district, town, or village wherein he is possessed of the above qualification.

iii. And for preventing frauds, as much as may be, in all elections, it is hereby enacted, by the authority aforesaid, that the returning officer shall come to the place at the time appointed by the public notice given and shall enter the names of every person presented or presenting himself as candidate, in a book or roll, leaving a fair column under each candidate’s name for the names of the voters, and when a voter comes and votes the returning officer shall repeat distinctly the person or persons’ names for whom the vote is given before he writes the voter’s name in the fair column under the name of such candidate or candidates as shall be voted for by that person, and that no voter shall alter his voice after it be entered or vote twice at one and the same election. And that the candidate or candidates who, after the poll is closed and the votes summed up, shall be found, upon scrutiny made if demanded, to have the majority of votes shall be deemed and declared to be a member or members of the succeeding Commons House of Assembly.

iv. And be it enacted, by the authority aforesaid, that the time for taking votes at any election shall be between the hours of nine of the clock in the forenoon and six in the afternoon, and that at adjourning the poll, at convenient hours during the time of an election, the returning officer shall first sum up the votes given for each candidate and declare the same to the candidates present, and also declare the same when he has opened the poll at the ensuing meeting, and that the said election shall not continue longer than two days unless a scrutiny is demanded. Provided, nevertheless, that the returning officer is hereby empowered and required to close the poll when he or they have waited two hours after the last vote has been given, or at any time by and with the consent and desire of all the candidates then present.

v. And be it enacted, by the authority aforesaid, that every person who shall be elected and returned, as is before directed by this act, to serve as a member in the Commons House of Assembly of this province shall be qualified in the following manner, viz., that he shall be a free-born subject of Great Britain or of the dominions thereunto belonging, or a foreign person naturalized, professing the christian religion and no other, and that has arrived at the age of twenty-one years, and has been a resident in this province for twelve months before the date of the said writ, and being legally possessed in his own right in this province of a tract of land containing at least five hundred acres.

vi. And be it enacted, by the authority aforesaid, that if any member or members chosen or hereafter to be chosen to serve in this or any other Commons House of Assembly shall refuse to serve, or any member or members should die or depart this province, or shall be expelled the House, so that his or their seat or seats become vacant, then and in such case the House shall, by address to the Governor or Commander-in-Chief for the time being signify the same and desire that a new writ or writs may issue to elect a member or members to fill up the vacancy or vacancies in the House, and, in consequence of such address, a new writ or writs shall be issued to choose in that parish, district, town, or village such other member or members to serve in the place or places of such member or members whose seat or seats are become vacant, and every person so chosen and returned, as aforesaid, shall attend the Commons House of Assembly and shall be reputed, deemed, and judged a member thereof.

vii. And be it enacted, by the authority aforesaid, that if any returning officer, as aforesaid, shall admit of or take the vote of any person refusing, at the request of one of the candidates or any two persons qualified to vote, to take the following oath, “I, A.B., do swear that I am legally possessed in my own right of a freehold estate of fifty acres of land in the township or district of    , and that such estate is legally or bona fide in my own right and not made over or granted to me purposely or fraudulently to entitle me to vote at this election,” or at the request of any candidate or any two freeholders shall refuse to administer the following oath to any candidate who is hereby obliged to take this oath if so required, “I, A.B., do swear that I am in my own right truly and legally possessed of five hundred acres of land within this province and that the said right is truly and bona fide within myself and not fraudulently made over or granted to me for the purpose of qualifying me to be a representative in General Assembly,” or if the provost marshal shall make any fraudulent or shall influence or endeavor to influence or persuade any voter not to vote as he first designed, shall forfeit for each and every such offense the sum of fifty pounds sterling to be to his Majesty for defraying the expense of the sitting of the General Assembly and to be sued for and recovered in the general court of the province by bill, plaint, or information.

viii. And be it enacted, by the authority aforesaid, that the provost marshall, or any person properly authorized by him to manage an election, as aforesaid, shall not return himself as a member to serve in General Assembly; and if the provost marshall refuses or neglects, on a summons from the Commons House of Assembly, to attend that House to inform them to the best of his knowledge of any matter or dispute that did arise or may have arisen about the election of the member or members by him returned to serve in Assembly, or refusing to show the poll taken, shall forfeit for every such offense fifty pounds sterling, to be applied and recovered as is herein before directed.

ix. And be it further enacted, by the authority aforesaid, that if any person or persons whatsoever shall, on any day appointed for the election of a member or members to serve in the Commons House of Assembly, as aforesaid, presume to violate the freedom of the said election by any arrest, menace, or threats, or attempts to overawe, afright, or force any person qualified to vote, against his inclination or conscience, or otherwise by bribery obtain any vote, or who shall, after the election is over, menace, despitefully use, or abuse any person because he has not voted as he or they would have had him; every such person so offending, upon due and sufficient proof made of such his violence or abuse, menacing, or threatening, before any two justices of the peace, shall be bound over to the next general sessions of the peace, himself in twenty pounds sterling money and two sureties, each in ten pounds like money, and to be of good behavior and abide the sentence of the said court where, if the offender or offenders are convicted and found guilty of such offense or offences, as aforesaid, then he or they shall each of them forfeit a sum not exceeding twenty pounds sterling money and be committed to gaol without bail or mainprize till the same be paid. Which fine so imposed shall be paid as before directed.

x. And be it further enacted, by the authority aforesaid, that no civil officer whatsoever shall execute any writ or other civil process whatsoever upon the body of any person qualified to vote for members of the Commons House of Assembly, as before in this act directed, either in his journey to or in his return from the place of such election, providing he shall not be more than forty-eight hours upon his journey either going to, returning from, or during his stay there upon that account, or within forty-eight hours after the scrutiny for such election is finished; under the penalty of a sum not exceeding twenty pounds sterling money, to be recovered of and from the officer that shall arrest or serve any process, as aforesaid, after such manner and form, and to be disposed of as herein before is directed. And all such writs or warrants executed on the body of any person going either to or being at, within the time limited by this clause, or returning from the place where such election is appointed to be managed, he being qualified to give his vote thereat, are hereby declared void and null.

xi. And be it further enacted, by the authority aforesaid, that this act or any part thereof shall not extend to debar the Commons House of Assembly of the right to judge and determine, agreeable to the directions of this act, the qualifications of any member or members of that House, or to take away from the General Assembly, or any part thereof, any power or privilege whatever that any General Assembly, or part thereof, heretofore of right had, might, could, or ought to have had in the said province, anything herein contained to the contrary in anywise notwithstanding. Provided, always, that this act or any part thereof shall not be construed to take away the power and prerogative given the Governor or Commander-in-Chief for the time being from the Crown to adjourn, prorogue, or dissolve any General Assembly of this province when and as often as he shall think fit and expedient to do so, or to take away any other power or prerogatives whatever had from the Crown.

By Order of the Commons House of Assembly

Grey Elliott,

Speaker

By Order of the Upper House

James Habersham

In the Council Chamber, the 9th day of June, 1761.

Assented to: James Wright

76

[The New England Confederation]

Text taken from Thorpe, Federal and State Constitutions, 77–81.

1643

These articles drawn up and approved by the four colonies of Massachusetts, Plymouth, Connecticut, and New Haven constitute the first attempt in America to join several colonies. The New England Confederation differed in two important respects from earlier documents of union in the colonies, such as the Government of Rhode Island, 1642 [37], the Fundamental Orders of Connecticut, 1639 [43], and the Fundamental Articles of New Haven, 1639 [46]. First, this confederation included settlements operating under different charters. There was no provision in any of the four colonial charters that implied the authority to erect such a union, but the “distractions in England,” as these Articles term the onset of the English Civil War, combined with colonial inclinations for self-government, seemed to make the historic step seem a natural one. Second, the other agreements established federations of towns that rehearsed the federal system erected in 1787, whereas this Confederation was a rehearsal for the Articles of Confederation. It is a true confederation, properly named, and describes itself internally as “a firm and perpetual league of friendship” (Article 2) much as the Articles of Confederation describes itself internally as “a firm league of friendship” (Article 3) and “perpetual union.” The New England Confederation, a confederation of federations, lasted formally until 1684, although it effectively ceased functioning in 1664, shortly after the “distractions” of the Commonwealth era came to an end.

Articles of confederation between the plantations under the government of the Massachusetts, the plantations under the government of New Plymouth, the plantations under the government of Connecticut, and the government of New Haven with the plantations in combination therewith:

whereas we all came into these parts of America with one and the same end and aim, namely, to advance the kingdom of our Lord Jesus Christ and to enjoy the liberties of the Gospel in purity with peace; and whereas in our settling (by a wise providence of God) we are further dispersed upon the seacoasts and rivers than was at first intended, so that we cannot according to our desire with convenience communicate in one government and jurisdiction; and whereas we live encompassed with people of several nations and strange languages which hereafter may prove injurious to us or our posterity; and forasmuch as the natives have formerly committed sundry insolences and outrages upon several plantations of the English and have of late combined themselves against us; and seeing by reason of those sad distractions in England which they have heard of, and by which they know we are hindered from that humble way of seeking advice, or reaping those comfortable fruits of protection, which at other times we might well expect, we, therefore, do conceive it our bounden duty, without delay, to enter into a present consociation among ourselves, for mutual help and strength in all our future concernments.

That, as in nation and religion, so in other respects, we be and continue one according to the tenor and true meaning of the ensuing articles. Wherefore it is fully agreed and concluded by and between the parties of jurisdictions above named, and they jointly and severally do by these presents agree and conclude that they all be and henceforth be called by the name of the United Colonies of New England.

2. The said United Colonies, for themselves and their posterities, do jointly and severally hereby enter into a firm and perpetual league of friendship and amity for offense and defense, mutual advice and succor upon all just occasions, both for preserving and propogating the truth and liberties of the Gospel and for their own mutual safety and welfare.

3. It is further agreed that the plantations which at present are, or hereafter shall be, settled within the limits of the Massachusetts shall be forever under the Massachusetts, and shall have particular jurisdiction among themselves in all cases as an entire body; and that Plymouth, Connecticut, and New Haven shall each of them have like particular jurisdiction and government within their limits, and in reference to the plantations which already are settled, or shall hereafter be erected, or shall settle within their limits respectively; provided that no other jurisdiction shall hereafter be taken in as a distinct head or member of this confederation, nor shall any other plantation or jurisdiction in present being, and not already in combination or under the jurisdiction of any of these confederates, be received by any of them; nor shall any two of the confederates join in one jurisdiction without consent of the rest, which consent to be interpreted as is expresed in the 6th article ensuing.

4. It is by these confederates agreed that the charge of all just wars, whether offensive or defensive, upon what part or member of this confederation soever they fall, shall both in men and provisions and all other disbursements be borne by all the parts of this confederation in different proportions according to their different ability in manner following, namely, that the commissioners for each jurisdiction, from time to time as there shall be occasion, bring a true account and number of all the males in every plantation or any way belonging to or under their federal jurisdictions of what quality or condition soever they be from sixteen years old to threescore being inhabitants there. And that according to the different numbers which from time to time shall be found in each jurisdiction, upon a true and just account, the service of men and all charges of the war be borne by the poll; each jurisdiction or plantation being left to their own course and custom of rating themselves and people according to their different estates with due respects to their qualities and exemptions among themselves though the confederation take no notice of any such privilege; and that according to their different charge of each jurisdiction and plantation, the whole advantage of the war (if it please God to bless their endeavors), whether it be in lands, goods, or persons, shall be proportionately divided among the said confederates.

5. It is further agreed that, if any of these jurisdictions or any plantation under or in combination with them be invaded by any enemy whatsoever, upon notice and request of any three magistrates of that jurisdiction so invaded, the rest of the confederates, without any further meeting or expostulation, shall forthwith send aid to the confederate in danger but in different proportions; namely, the Massachusetts, 100 men sufficiently armed and provided for such a service and journey, and each of the rest, 45 so armed and provided, or any less number, if less be required according to this proportion. But in any such case of sending men for present aid, whether before or after such order or alteration, it is agreed that at the meeting of the commissioners for this confederation the cause of such war or invasion be duly considered; and if it appear that the fault lay in the parties so invaded that then that jurisdiction or plantation make just satisfaction, both to the invaders whom they have injured, and bear all the charges of the war themselves, without requiring any allowance from the rest of the confederates toward the same. And, further, that if any jurisdiction see any danger of any invasion approaching, and there be time for a meeting, that in such case three magistrates of that jurisdiction may summon a meeting at such convenient place as themselves shall think meet, to consider and provide against the threatened danger; provided when they are met they may remove to what place they please. Only while any of these four confederates have but three magistrates in their jurisdiction, their request or summons from any two of them shall be accounted of equal force with the three mentioned in both the clauses of this article, till there be an increase of magistrates there.

6. It is also agreed that for the managing and concluding of all affairs proper and concerning the whole confederation, two commissioners shall be chosen by and out of each of these four jurisdictions; namely, two for the Massachusetts, two for Plymouth, two for Connecticut, and two for New Haven, being all in church fellowship with us, which shall bring full power from their several General Courts respectively to hear, examine, weigh, and determine all affairs of our war or peace leagues, aids, charges, and numbers of men for war, division of spoils and whatsoever is gotten by conquest, receiving of more confederates for plantations into combination with any of the confederates, and all things of like nature, which are the proper concommitants or consequents of such a confederation for amity, offense, and defense, not inter-meddling with the government of any of the jurisdictions, which by the 3rd article is preserved entirely to themselves ... It is further agreed that these eight commissioners shall meet once every year, besides extraordinary meetings (according to the 5th article), to consider, treat, and conclude of all affairs belonging to this confederation ...

8. It is also agreed that the commissioners for this confederation hereafter at their meetings, whether ordinary or extraordinary, as they may have commission or opportunity, do endeavor to frame and establish agreements and orders in general cases of a civil nature, wherein all the plantations are interested, for preserving peace among themselves and preventing as much as may be all occasion of war or difference with others, as about the free and speedy passage of justice in every jurisdiction, to all the confederates equally as to their own, receiving those that remove from one plantation to another without due certificates; how all the jurisidictions may carry it toward the Indians, that they neither grow insolent nor be injured without due satisfaction, lest war break in upon the confederates through such miscarriage.

It is agreed that if any servant run away from his master into any other of these confederated jurisdictions, that in such case, upon the certificate of one magistrate in the jurisdiction out of which the said servant shall be delivered either to his master or any other that pursues and brings such certificate of proof. And that upon the escape of any prisoner whatsoever, or fugitive for any criminal cause, whether breaking prison, or getting away from the officer, or otherwise escaping, upon the certificate of two magistrates of the jurisdiction out of which the escape is made, that he was a prisoner, or such an offender at the time of the escape, the magistreates, or some of them of that jurisdiction where for the present the said prisoner or fugitive abides, shall forthwith grant such a warrant as the case will bear for the apprehending of any such person, and the delivery of him into the hands of the officer or other person who pursues him. And if there be help required for the safe returning of any such offender, then it shall be granted to him that craves the same, he paying the charges thereof.

9. And for that the justest wars may be of dangerous consequence, especially to the smaller plantations in these United Colonies, it is agreed that neither the Massachusetts, Plymouth, Connecticut, nor New Haven, nor any of the members of them, shall at any time hereafter begin, undertake, or engage themselves, or this confederation, or any part thereof in any war whatsoever (sudden exigents with the necessary consequents thereof excepted which are also to be moderated as much as the case will permit) without the consent and agreement of the forenamed eight commissioners, or at least six of them, as in the 6th article is provided; and that no charge be required of any of the confederates in case of a defensive war till the said commissioners have met and approved the justice of the war, and have agreed upon the sum of money to be levied, which sum is then to be paid by the several confederates in proportion according to the 4th article ...

11. It is further agreed that if any of the confederates shall hereafter break any of these present articles, or be any other ways injurious to any one of the other jurisdictions, that both peace and this present confederation may be entirely preserved without violation.

[1. ]Note that as a result of the Glorious Revolution in 1688 we see for the first time Parliament mentioned as having the ability to legislate for a colony originally founded by a charter from the king.