EH. -1 c^ UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY & A CONSTITUTIONAL HISTORY OF THE AMERICAN PEOPLE 1776 I 8 J o BY FRANCIS NEWTON THORPE Illustrated with Maps IN TWO VOLUMES VOLUME ONE NEW YORK AND LONDON HARPER & BROTHERS PUBLISHERS 1898 Copyright, .S98, by Harper & Brothers. Ali rights rescnid. ' • . . . The form of government which prevails is the expression of what cultivation exists in the population which permits it. . . . The history of the State sketches in coarse outline the progress of thought and follows at a distance the delicacy of culture and aspiration." Emerson, "Essay on Politics." PREFACE This work contains the evidence of chanQ-es — and, it is believed, of progress — in the ideas and opinions which the American people have held respecting the principles, the organization, and the administration of their civil institutions. It is a record of the evolution of government in this country since the Revolution, and it rests upon authorities hitherto almost entirely disregarded. Constitutional history is the history of a constitu- ency, which, consciously or unconsciously, is ever striving to promote its own welfare. A constitu- tional history deals primarily with persons, not with documents. Laws and constitutions, written or unwritten, are the evidence of the efforts of a constituency to secure its ends. The develop- ment of constitutional government consists, essen- tially, in the definite limitation of authority, in order to accomplish purposes either implied or specified. These purposes are constant demands upon the constituency, but the means adjudged reasonable or necessary for securing them are as constantly changing. The process is from things to persons ; it is progressive because it is dynamic. V Preface No one can go over the evidence which this work presents and have his confidence shaken in the fact that American civil institutions are an enduring monument to the general amelioration of the con- ditions of human life which characterizes modern civilization, and particularly the civilization of the last century and a half. Yet, when we reflect on the humanity of government in our day, we realize that we are startlingly near the age that interpreted criminal law to be for the purpose of exterminat- ing, not of reforming, evil-doers — an age which felt compelled to include in its written constitutions of government the provision that excessive bail should not be required, nor excessive fines im- posed, nor cruel and unusual punishments in- flicted. Public opinion to-day is the living law whose mercy seasons justice. There is another, perhaps a more impressive, proof of the general amelioration of men, man- ners, and laws — namely, the gradual growth of the national idea — that is, the gradual disappear- ance of isolated, petty, and antagonistic commu- nities, and the slow but sure recognition of the presence of an organic and moral person which we call the Nation. It is yet but a partly discov- ered country, but every voyage of social and in- dustrial effort uncovers its farther shores. Our constitutional history, like that of every other peo- ple, is a history of the evolution of religious, of political, and of industrial rights. The steps in all this progress are recorded in the results of many struggles. Among these are the struggles vi Preface for the extension of the suffrage, for the equita- ble apportionment of representation, for the abo- lition of discrimination on account of race or of previous condition, for the organization of sys- tems of education free to all, for the separation of the state from questionable practices, and for the establishment of government directly upon the will of the people. Incidental to these processes has been the slow definition of the functions of the state, of its rights as a moral person in co- ordination with the rights of the individual and of its powers and their fields of operation — executive, legislative, and judicial. And, finally, the evidence suggests, what seems to escape the attention often- times not merely of individuals, but also of masses of men — that government is made for man, and man not merely for government. The evidence enables us to deduce, with ap- proximate accuracy, the principles on which gov- ernment in America rests. The peculiar claim of popular government to universal authority is its identification with the great principles of civiliza- tion. It claims to be founded upon the rights of man and the principles of human nature. Popu- lar government is still on trial. Its principles are simple and profound, and often seem lost in a mass of legislation, judicial decision, executive action, and popular agitation. It is possible to know its facts and miss its principles. If the evidence here pre- sented shall lead the reader to the consideration of these principles, the purpose for which this history has been written will have been accomplished. vii Preface The principal authorities upon which the evi- dence rests are the laws and constitutions of the country, and the journals, proceedings, and debates of constitutional conventions, -The constitutional convention ori2:inated in America, and is a recoor- nized political institution in modern government. Perhaps it might be called the principal contribu- tion of America to the political agencies of the world. It is a grand committee of the constitu- ency authorized to submit a plan of government. Its discussions have hitherto been neglected as evidence of the nature of American civil institu- tions and of their trend and administration. The traditional distinction between State administration and national government has done much to estab- lish a popular notion that they rest on different principles. The history of our institutions con- firms the contrary idea, that government in this country rests upon principles broad and general, and that the idea of union is as scientific as it is legal. A word may be added on the method of treat- ing the subject. Government rests on ideas and ideals. These, in so far as unfolded at the organ- ization of the American commonwealths in the eighteenth century, are traced, some to their origin and all to their end, in the earlier chapters of the first volume. An examination of the constituency follows — the people in their local civil organiza- tion and also in their racial and social relations. Our dual system of government — State and na- tional — sooner or later compelled issues involving viii Preface the question of sovereign t}?-. In one form the issue is stated in 1798 and compromised in 1820. The constituency itself is constantly changing and rearranging the political estate. This calls for some account of the franchise — its basis and its growth. The extension of the franchise to free negroes involves the fate of slavery. This is more clearly seen about the time of the Mis- souri Compromise. From that time immigration and migration into the West rapidly enlarge the field of controversy, and more sharply define the incongruous elements in our political institutions. The spirit of democracy seizes the constituency, and a general demand is heard that the appointive system be abolished and the elective system be substituted. This demand, active after 1820, leads to a reorganization of government in America. The process characterizes political action for the next thirty years, and appears on party records as a series of reforms in the franchise, in repre- sentation, in legislative functions, in judicial organ- ization, in public finance, in local government, and in provisions for free schools. By 1850 the first wave of population had passed across the continent from the Atlantic to the Pacific, and the public domain was under local civil government. The complexity of the changes wrought during seventy-five years is suggested by the extension of the Union westwards, from thir- teen States to thirty-one States and six Territories. The extension was in two columns, a Northern and a Southern, whose elemental differences were ix Preface clearly defined. Between extremes lay a border- land — the Border States. It is necessary, therefore, to record three phases of civil evolution, and, again, a fourth phase, because, in the far West, men of the North, of the South, and of the Border States, united to found the first commonwealth on the Pacific coast. The nature of the civil process dur- ing all these years is best understood by examin- ing somewhat in detail the work of constituencies in the North, in the South, in the East, in the West, and at the Border. This examination is begun in the first volume and is continued in the second. The time is from 1845 to 1850, and the constituencies are Louisiana, Kentucky, Michigan, and California. The principles of government in America are here again examined, and the ex- perience of more than a half-century enables the people to apply these principles in new directions, and, sometimes, in new ways. America in 1850 differs from America in 1776. The concept of the State and its functions has greatly changed. Civil relations are seen in a new light. Citizenship is defined anew. The co-ordinate branches of gov- ernment are conceived not only under revised relations, but as under a stricter accountability to the people. Representative government sits more firmly in its continental seat; the anxieties and strivings of the early years of the republic are gone ; the people seem not only poised, but ag- gressive and almost proselyting in their political confidences. The democratic spirit has permeated the land — local government in towns, cities, and Preface counties feels its power. Democracy has so re- vised its ideals that it seems to have passed through a peaceful revolution. The details of this revolu- tion are recorded in the later chapters of the second volume. An examination of the evidence there presented shows the truth and the insight of Emerson's observation, that society is ever in a state of flux. Constitutions and laws, usually placed as permanent landmarks on the civil es- tate, appear and disappear like the species in the organic world. Even our constitutions of govern- ment prove the law of evolution. Many concepts of the Fathers have been re- vised ; some have been abandoned. It is a wise generation that knows itself and its own. From the evidence presented in these volumes it must be admitted that the changes wrought in Ameri- can civil life during these seventy-five years indi- cate that the American people became liberal and altruistic as they became a power among the na- tions of the world, and that our constitutional his- tory is of a constituency that has grown humane as it has become conscious of its responsibilities. CONTENTS CHAPTER I THE STATE PAGE Two large processes to be worked out in the evolution of democracy in America i The forerunners of representative government in America . 2, 3 Racial influences on the State 3 Democracy in America a resultant 4 Government a problem of adjustments 5 Labor dictates in the evolution of democracy 6 Character of the Revolution of 1776 7 The blending of industry and politics 8 Politics vs. Industry 9 The age of discontent in democracy 10 The tests of democracy 11 The demands put upon it 12 The ultimate in democracy 13 The tests of administration 14 Democracy defined 15 Its principles, according to Webster 16 Education the guardian of public safety 17 The seventeenth and eighteenth centuries compared ... 18 True character of the democracy of the eighteenth century now better understood 19 The phases of democracy in its evolution 20 Sequence of political aspirations 21 The transition, in this country, from ancient egoism to modern altruism 22 Development of constitutional government in America . . 23 Theories and definitions set forth 24 Conspicuous omissions in the national constitution ... 25 xiii Contents FAGB Successive groupings of civil interests 26 The altruism of democracy 27 Political campaigns — the organs of reform, change the form of the State 28 CHAPTER II THE FORM OF DEMOCRACY IN THE EIGH- TEENTH CENTURY In the closing years of the seventeenth century America gave little promise of becoming a continent of common- wealths 29 Authorities for opinions respecting the evolution of govern- ment in the United States 29-32 State of America in 1700 30-33 Forces contending for supremacy 32 The survival of free institutions 33 Birth of a continental spirit in America 34 Forebodings of the Revolution 35 The struggle between absolutism and individualism ... 36 The American constitutions the slow product of expe- rience 37. 38 Montesquieu's influence in America 39 Blackstone's influence 40 Lowell's estimate of Voltaire's influence 41 Franklin's influence 42 Jefferson and the Rights of Man 43 The American Revolution reconstructed the theory of the State 44 Legal fictions adopted as dynastic facts 45 The new constitutions were experiments 46 Concepts, old and new, of American institutions 47 The two ideas at the basis of American political institutions : natural rights and the social compact 48 The great American Bill of Rights drawn by George Mason 49 Applications of the doctrine of natural rights 50 The struggle for trial by jury 5'. 52 Christian doctrine in the early constitutions 53-54 Liberality of Vermont respecting other than the white race . 54 Virginia and New England the parents of constitutions in the West 55 xiv Contents PAGE The guarantee of rights 56 Reforms and new precedents 57 Effort to make constitutional provisions permanent ... 58 Constitutions evolving into codes 59 CHAPTER III THE ORGANIZATION OF GOVERNMENT IN THE STATES Disqualification of non-church members 60 Social distinctions 61 Constitutions change most in times of peace 62 How administrative measures may become provisions in bills of rights 63 The States were making the first attempt in history to define civil functions by means of a written constitution ... 64 English and American legislative systems compared ... 65 The difficulties in fixing a basis of representation .... 66 Conservatism of early democracy 67 The qualifications of members of the Assembly . . .68, 70, 71 Legislative procedure borrowed from England 71 The test of sovereignty 72 State and national sovereignty 73 John Adams, the father of the public school 74 First limitation of the power of the Legislature 75 The most artificial part of the system, the Senate .... 76 The qualifications of senators 77,78,79 Senatorial apportionment 80 Characters of the early Senate 81 The Senate a discovery in politics 82 Qualifications of the governor 82, 83 Popular distrust of executive power 84 The first commonwealth governors 85 Their obscure functions 86 Dignity attached to the office 87 The executive council 88 Organization of the courts 89 The golden age of litigation 90 Complications of early legal practice 91 Slavery ; nationality 92 Qualifications of the electors 93, 94, 95. 96 The landless man 97 XV Contents PAGE The initiative in constitutional reforms 98 Individualism dominates politics 99 Permanency of the ancient landmarks 100 CHAPTER IV TRANSITION TO INDEPENDENT STATES The colonization of America proceeded according to feudal notions loi Representative government in America incident to the con- ditions of colonial life Representative institutions prompted by the love of gain . The democratic tendency of colonial life Conflicting notions concerning representation in early colo- nial times Fictitious analogies Formation of two legislative chambers Spread of the democratic spirit over America Birth of the American legislature Government not directly founded on the people How the colonies became States The procedure abnormal Congress advises the organization of independent State gov- ernments 113 New Hampshire 113,114 South Carolina 115,116 Virginia 117, 118 New Jersey 118 Delaware 119 Pennsylvania 120 North Carolina 121 Georgia 122,123 New York 123,124,125 Vermont 126,127 Connecticut 128 Rhode Island 129 Massachusetts 130, 131, 132 CHAPTER V THE CONSTITUTIONAL ELEMENTS Virginia removes the last obstacle to the admission of Ken- tucky 133 xvi 02 03 04 05 06 07 08 09 10 1 1 12 Contents PAGE The Kentucky conventions of 1792 and 1799 134 Beginnings of Tennessee 135 The State of Franklin 136 The Tennessee Convention of 1796 137 Eminent personages in the eighteenth century conven- tions 138,139 Codes and constitutions composite in character ; interstate influence 140 The national constitution largely founded on State laws . . 141 Derivative features 142 The national and the State constitutions form an organic whole 143 The Ordinance of 1787 144 Analysis of its provisions 145. 146, i47 Provision for the future 148 The territory southwest of the Ohio 149 North Carolina imposes a permanent condition upon it . .150 Readoption of the ordinance by the first Congress . . . -151 Admission of Vermont ; organization of the Territory of Indiana 152 The country between Georgia and the Mississippi River . .153 Organization of the Territory of Mississippi 154 Robert Grey, captain of the ship Columbia, discovers Oregon 155 The Indian lands an exception to the law of civil govern- ment 156 The Indian tribes bar the way to the West 157 The three lines of immigration to the West 158 State of the country in 1800 158-159 The fundamental idea was that property is the basis of gov- ernment 160 CHAPTER VI THE FIRST STRUGGLE FOR SOVEREIGNTY No American constitution has defined sovereignty .... 162 Strong and weak elements in the States 162, 163 Efforts to formulate a federal union 163 The articles of confederation on the circuit 164 History of the phrase, "free, sovereign, and independent" 164, 165 Sovereignty discussed in the Convention of 1787 .... 166 Remarks of Hamilton, King, Gerry, and Ellsworth . . 167, 168 xvii Canients I'AGE Residuary sovereignty and popular sentiment 169 Hostility of the States to the new government 170 Jefferson's definition of political parties in 1798 171 Party material in the country 172 Feebleness of the national idea 173 The power of the rising West 174 What the West thought of the East 175 The Supreme Court declares for national sovereignty . . .176 The States set the decision aside 177 The Constitution amended, accordingly, 1798 178 Jeflerson organizes the Democratic party 179 His political methods and his lieutenants 180 The alien and sedition laws force a crisis 181 Character of these laws ; their reception by the country . . 182 The coming of Clay 183 The Kentucky resolutions 183 The Virginia resolutions 184 Examination of them 185 The resolutions before the States 186 Madison makes the argument for State sovereignty . . . . 187 Nullification; popular interpretation of federal powers . .188 The " Doctrine of '98 " wins in the election of 1800 .... 189 A new party in power 190 CHAPTER VII THE POLITICAL ESTATE AT THE OPENING OF THE NINETEENTH CENTURY A government must be judged by the condition of the peo- ple who support it 191 New Hampshire inaugurates reform in the franchise by adopting persons instead of property as the basis of gov- ernment 192 Qualifications of the voters in New England in the eighteenth century 193, 194 The franchise in New York 195 The four great districts of New York State 196 The franchise in New Jersey and Pennsylvania 197 In Delaware, Maryland, and Virginia 198 In North Carolina and South Carolina 199, 200 In Georgia, Kentucky, and Tennessee 201 In Vermont 201-202 xviii Contents PAGE Religious qualifications 202 Their disappearance 203 Causes of this 204 Opinion of non-churchmen 205 The free person of color 206 Negro emancipation discouraged 207 The free negro in the North 208 The State not conceived as altruistic 209 The rising discontent 210 CHAPTER VIII THE FIRST MIGRATION WEST The fireside stories of the Northwest 211 Settlement of the Triangle 212 The approaches to the new Northwest 213 Two streams of population converging upon the Chautauqua country 214 William H. Seward, the Holland Land Company, and the settlers on its lands 215 Trade and travel on Lake Erie 216 Smuggling and the embargo 217 The home of a pioneer 218 Early industries in the Chautauqua country 219 On the circuit 220 Presbyterians and Methodists 221 The frontier store 222 Physicians and school-masters 222, 223 The first court 223 The first mails from Buffalo westward 224 Child life 224 Politics and religion 225 Social distinctions on the frontier 225, 226 Slavery in the Northwest 226 Purchase of Louisiana 227 The purchase changed the history of the United States . . 228 Organization of the Territory of Ohio and first provision for free public schools 229, 230 Territory of Michigan and of Illinois organized 231 Congress prescribes a property qualification for voters . .231 Indian war on the frontier ; Harrison and Jackson .... 232 The barrier to the West removed 233 Influx of immigrants ; Alabama and Mississippi organized . 234 xix Contents I' AGE Four new States — Indiana, Mississippi, Illinois, Alabama ; Louisiana; Missouri 235 Maine, Arkansas ; the United States takes military possession of Florida 236, 237 Admission of Missouri 237 All territory east of the Mississippi organized under local civil authority 238, 239 CHAPTER IX FROM THE ALLEGHANIES TO THE MISSIS- SIPPI The advancing frontier in 1800 240 Who shall control the channels of commerce? 241 The outposts of the country in 1800 242 Louisiana an unknown land 243 Shall the Ordinance of 1787 be repealed? 244,245 Objections to the admission of Louisiana 246 Organization of the Territories of Orleans and Louisiana . 247 The new Missouri Territory 248 State making, Indiana 249 Illinois 250 Extension of the Ordinance of 1787 251 The Missouri controversy 252 View of the country in 1820 253 Florida purchased 254 What is the western boundary of the United States? . . . 255 Changes in Michigan Territory 256 The boundary commissions of 1822 257 Independence of Texas 258 The organization of new Territories and States keeps pace with the movements and increase of population . 258, 259 The founding of Chicago 259, 260 The Indian tribes and the immigrants 261 New men and new public issues 262 Extension of the franchise 263 The epoch-making West 264 Homeric quality of life on the frontier 265 The East and the West view the national government in different lights 266 Contents CHAPTER X FEDERAL RELATIONS — MISSOURI PAGE The guarantee of property rights in the treaty of 1803 . . . 267 Critical application of the guarantee in the request of Mis- souri for admission into the Union 268 Tallmadge of New York proposes a clause restricting slavery 269 Has Congress the power to restrict ? 270 Is slavery detrimental to a State ? 271 What is a republican form of government ? 272 Some provisions in the Constitution not applicable to new States 273 Difference between migration and importation 274 A blow for emancipation 275 The attack on slavery an attack on property 276 Proposed line of demarcation for slavery 277, 278 Popular excitement over the Missouri question 279 A new element in the question ; Maine 280 The Maine-Missouri bill in the Senate 281 Slavery restriction (the Taylor amendment) discussed in the House 282 The two Houses in conference 283 Prospect of disunion 284 Stubborn fight for free soil 285 Thomas H. Benton the author of the objectionable clause in the Missouri constitution 286 Its conflict with the national Constitution 287 Can Congress prescribe conditions for a new State? . . . 288 Let the Supreme Court decide doubtful questions .... 289 Who are citizens ? 290 Increase in the number of free persons of color 291 Can a new State exclude free negroes? 292 They are not citizens in the meaning of the Constitution. . 293 The assertion controverted 294 No discrimination in the national Constitution 295 Is Missouri a Territory or a State ? 296, 297 The imposition of a condition, by Congress, on a State con- trary to precedent 298 What privileges have black citizens ? 299 Clay's compromise 300, 301 General Pinckney's testimony to the meaning of the fourth article of the Constitution 302 xxi Contents PAGB Firm stand of the restrictionists 303 Shall the electoral vote of Missouri be counted? . . . 303, 304 Tumult and confusion in the House 305,306 Clay's peaceful efforts 307 The question at the root of the Missouri controversy . 308, 309 Powers of Congress 310,311 Arguments against them and for them 311,312,313 Opinions of John Jay and Daniel Webster 313,314 Triumph of the " Doctrine of '98 " in the settlement of the Missouri controversy 315 CHAPTER XI BEYOND THE xMISSISSIPPI The Arkansas constitution of 1836 316,317 The Michigan constitution of 1835 318 The Indian Country 319 Wisconsin organized 320 Iowa organized 321 Westward movement of the frontier 322 The era of internal improvement begins 323 Abraham Lincoln's first political circular (internal improve- ments, banking, schools) 324-328 The demands of the West 329-330 His second circular 330, 331 The State mortgaged for internal improvements . .... 331 Collapse and repudiation 332 The American people in 1830 333 The effects of the panic of 1837 334 Mexico, Texas, and the United States 335 The South eager to recognize Texan independence .... 336 Opposing sentiment in the country 337-340 State sovereignty notions in Maine and Massachusetts drawn out by the boundary dispute with Great Britain . 340, 341 Treaties with Russia and Mexico ; immigration to Texas . . 342 Texas and its constitution 343, 344 Wisconsin admitted 345 California 345, 346 Organization of Minnesota and Oregon 347 Organization of Utah and New Mexico 348 The changes of three-quarters of a century, 1776-1850 . . . 349 Foreign immigration 350 xxii Contents PAGE Building up the cities of the West 351 The homes of the people 352 The churches and the great preachers 353 Character of the population 354 Slave soil hemmed in by free labor 355 CHAPTER XII A PEOPLE WITHOUT A COUNTRY The oppressors and the oppressed 356 The false tenets of American democracy 357 When the slave became a political factor 358 The anomaly of free negroes and negro slaves in a de- mocracy 359 Free negroes in New England 360 The penalties of emancipation 361 Laws keeping free negroes in intellectual bondage .... 362 Rapid increase of free negroes 363 Relative increase of hostile legislation 364 Ostracism of the free negro North and South 365 His condition often worse than that of the slave 366 Flight of the free negro into the wilderness 367 The free negro a standing incentive to servile insurrection . 368 Free negroes treated as runaway slaves 369 Case of the slave " Isaac " 370 New York admits free negroes to the franchise in 182 1 . .371 Reason for this liberal innovation 372 Exclusion of the class from the schools, North and South 372, 373 Prudence Crandall's free school 373, 374 Discrimination in Ohio 375 Change of public opinion in Ohio 376 California and the free negro ; resolutions of the States 377, 378 Foreign immigrants cow the negro voter 379 The underground railroad 380 Hatred of the negro in the North 381, 382 He was classed with the criminal population . . . . . . 383 Admitted to the church, excluded from the industries . . . 384 The struggle for free public schools 385 Slavery muzzles free speech 386 The cost of slavery 387 The new West frowns on the free negro 388 xxiii Contents PACE The migration of the free negro follows the law of climate in spite of acts of legislatures 389 Selfishness at the bottom of racial hostility 390 Race prejudice in California in 1849 391 The States on the threshold of division along color lines, in 1850 392 Northern ameliorative measures for the negro 393 They were dictated by self-interest 394 Exigencies compel concessions 395 Questions pressing to the front whenever a Territory seeks admission into the Union 396 Sources of our knowledge of the evolution of the American constitutions 397 Typical States, North, South, East, and West 398 Collapse of slaveocracy before free labor 399 CHAPTER XIII DEMOCRACY IN A GULF STATE; 1845— LOUISI- ANA Reforms demanded in Louisiana 400 Character of the population 401 The foreign-born element 402 Position of foreigners in slave States 403 What influences dictated the qualifications of the voter? . . 404 Representation on the federal principle 405 The economic aids to good gov^ernment 406 Sovereignty not in the people 407 The question of residence 408 Native-Americanism 409 A confusion of precedents 410 The rule of wealth 411 The question of a property qualification 412 Residential qualifications for office 413 Discrimination against the citizens of other States .... 414 Universal citizenship 415 Immigration to the State must be encouraged 416 The commercial importance of New Orleans 417 A State must judge of its own best interests 418 Citizens without naturalization 419 The dangers of Native-Americanism 420 Evil example of the Hartford Convention 421 xxiv Contents PAGE New elements of political strife 422 Liberal principles of our early statesmen 423 Many of the " fathers " were alien born 424 Judah P. Benjamin warns the State against the abolitionists . 425 Slavery excluded foreign immigration 426 Cosmopolitan character of Louisiana 427 The doctrine of universal suffrage exploded 428 Shall man or property vote ? 429 Increase the number of freeholders 430 CHAPTER XIV THE BASIS OF REPRESENTATION Shall the laboring man be allowed to vote? 431 Evil of an extended franchise portrayed 432 Is not a property qualification for the voter a detriment to the State ? 433 The power of Virginia as a precedent 434 The South and its antagonistic population 435 Evils of the single district system pointed out 436 Where the federal number failed 437 The city vote vs. the country vote 438 Jefferson's Notes on Virginia cited .• 439 Influence of Jefferson's ideas 440 The congested power of large cities 441 Political power should be diffused through the State . . . 442 The negro beyond the pale of politics 443 The equities of representation 444 The federal basis and agricultural interests 445 Relative wealth of the cities and the country 446 In restraint of municipal power 447 Instances of restraint in other States 448,449 Fact and fiction count in making a State constitution . . . 450 Native-Americanism and the naturalized citizen 451 Right of a State to discriminate among its citizens .... 452 Supremacy of Congress and the Constitution 453 As to national citizenship 454 Contents CHAPTER XV ELEMENTS OF DISCORD IN THE COMMON- WEALTH PAGE Why the governor should be native born 456 The American theory of citizenship 457 Interstate rights of citizens 458 Monroe, Madison, and Marshall on citizenship 459 The foreigner in Louisiana 460 Free colored persons and the slave States 461 Van Buren and Tompkins on citizenship 462 Politics and constitutional provisions 463 Danger from northern abolitionists 464 Did the national Constitution intend to include other than the white population in its provisions? 465 The slave-holding concept of a commonwealth 466 How can two antagonistic populations be represented? . . 467 Slavics vs. white servants 468 Difficulties in apportioning representation 469 Slavery first disappeared in the cities 470 The three methods of apportionment 471 Danger of antagonism to slavery 472 Town t/.f. country 473 The equilibrium sought 474 Slaves both property and persons . . 475 Slaves vs. poor whites as elements in the population . . . 476 Ancient privileges of slaves in America 477 Slaves not political persons 478 Can the federal basis be applied in a commonwealth? . . . 479 Shall Louisiana condemn slavery? 480 Massachusetts protests against slave representation in the Union 481 Power of a State over its own institutions 482 How shall representation be equalized? 483 Impending political changes 484 Every man's hand against the negro 485 Slavery makes equitable representation impossible . . 485,486 Contents MAPS Map showing the English Colonies in North America ; re- drawn from the map published according to Act of Parliament June lo, 1775, by R. Sayer and J. Bennett, No. 53 in Fleet Street (from a copy in the Pennsylvania Historical Society) Facing p. 26 Map of the United States in 1790, showing civil divisions and distributions of population ; compiled from the cen- sus and the statutes at large Facing p. 150 Map of the United States in 1796, showing the Wilderness Roads ; redrawn from Wilkinson's map published in London, June 2, 1794, with the roads added from various authorities Facing p. 158 Map of the United States in 1800, showing civil divisions and distributions of population ; compiled from the cen- sus and the statutes at large Facing p. 212 A similar map for 1810 Facing p. 232 A similar map for 1820 Facing p. 252 A similar map for 1830 Facing p. 260 A similar map for 1840 Facing p. 332 A CONSTITUTIONAL HISTORY OF THE AMERICAN PEOPLE VOL. I A CONSTITUTIONAL HISTORY OF THE AMERICAN PEOPLE CHAPTER I THE STATE In the evolution of democracy in America two large processes were to be worked out — the utili- zation of the resources of nature and the organ- ization of civil affairs by means of a government adapted to such a country as ours. The indus- trial process has been co-ordinated with the civil, and democracy in America is the result. In Eu- rope, since the heraldic summons of the Refor- mation, which came hard after the Columbian voyages, and in America, with the coming of the seventeenth century, the principles of government have shown a democratic application. It might be expected that Europe would anticipate Amer- ica ; that in the deep mine of Indo-European ex- perience there should be worked out some of the principles of civil society as defined more clearly by modern tests ; it might be expected that the toiler in the mine might miss the principles, Constitutional History of the American People though contributing by his labor to their defini- tion in a later state of society, organized on an industrial and civil basis such as has been built upon in America. The thought of More, of Milton, and of Locke, of Montesquieu and of Penn, generalized upon the labor done in that mine, and grew into political systems, which, though differing from one another as widely as their authors, agree in placing a free man at the centre. It was too soon to find in any political system that modern correlative — free labor. The contradiction was sophistically avoided by deny- ing manhood to the slave. The slave was a beast of burden. But there are those who con- sider the end. It is the function of the political philosopher, in the social economy, to anticipate results. Thought outruns performance. So Mon- tesquieu anticipates the democracy of to-day, Hume anticipates the French Revolution, and Franklin the modern age of administration in government. Franklin finds the theory of the state made up, and devotes himself to the next problem — its administration. At times, from the close of the seventeenth to the close of the eisfh- teenth century, the theory of the state was set forth, and the definition, modified by another cen- tury's experience, remains in the dictionary of politics essentially unchanged. It was made by successive processes in the evolution of democ- racy. Its elements are the individual, and that aggregate of individuals which we call the com- munity or state. The Foundations of Democracy The history of that definition is a chapter in the history of the evolution of democracy. Rome evolved the idea of a legal body called a corpora- tion ; itself a fiction, but a useful legal convention. This legal fiction was the chief discovery in gov- ernment for twelve hundred years. It was a le- gal device capable of a various civil application. While it was reaching perfection in southern Europe among the Greco -Latin peoples, the Teutonic peoples in northern Europe were yet uncivilized. Communal and individual interests were at war in all that region north of the Roman world. Communal interests were there subordi- nate to individual. Between the Roman and the Teuton was the Celt, who adjusted himself to the military form of the Roman state and laid the foundations of feudalism. He divided the land into counties, and rudely began that communal organization which has survived in our local and county government. It was the Celt who first applied the Roman military idea in local govern- ment. It was the Celt who first applied the ad- ministrative principles in the modern state, and his experience, chiefly military, bred in him slight respect for the form of government. Hence in the Celtic political economy arose a system of ad- ministrative law. A king is as dear to him by any other name, but he prefers the other name. His idea of the administration of government is military : the citizen is first a soldier. The rude and individualistic Teuton saw in the Roman cor- poration not merely a legal fiction, but a civil 3 CoiistHufional H/sforv of the Aiucrican People opportunity. Why not view that burdensome but necessary relation between individual and individ- ual, between one and many in the state, as a compact? Why not conceive of the state as the civil resultant of these two factors — making the many a corporation, and yet not diminishing the rights of individuals? Between these legal parties a contract could be made, or be conceived as made. By the terms of this contract civil rights should be guaranteed; the soldier should first be a citizen. Rome gave the world order without liberty. The Celt administers government with occasional sacrifice of order to license. The Teuton conserves liberty and order. Democracy in America is the resultant of Roman, Celtic, and Teutonic ideas. It is a civil composite. Its evolution is recorded in a series of political adjustments. Political adjustments constitute the administration of (government. It is that of which Franklin, Jefferson, Hamilton, and Lincoln frequently speak. It is a practical affair. It is the other half of the apple of civil dis- cord, as for ages the first half had been the theory of the state. Democracy in America is but slightly original. It was latent in European life long before the colonization of America; but the adjustment of local and general interests in the state has de- veloped before our eyes in this country, and there- fore it seems new and peculiarly our own. So the fruit on the tree is the farmer's; the flower on the bush the gardener's. Each wrought in The Past Controlling the Present sincerity, but the seed was before flower or fruit. In the search after the genesis of government in America, it is difficult to distribute the shares of influence equitably among the contributing na- tions. It is the present that is hard to see. No new theory of the state distinguishes the political philosophy of the nineteenth century. Philo- sophically, it is a century with a backward look. It explores the past to as great a distance as it antic- ipates the future. It sets in order the genesis of our civil institutions, and resolves us all into heirs- at-law. We have applied the past while working in the present. The style of the tool changes ; but frost and rain and earth are, and weeds grow in spite of botany. The apple on the tree, how- ever, is larger, fairer, and pleasanter to the taste than the wild apple ; the flower on the stalk is the history of generations of gardeners. Flower and fruit are come from fruit and flower, and their changes register an evolution hastened by intelli- gent culture. The free man is a part of the sys- tem. At one time he was of opinion that he was at the centre of the universe, but a bit of glass and the fall of a Newtonian apple put him in his true place. He has his place in nature, not in the worst rank, but he is a means of adjustment rather than a creator. Democracy in America is another chapter in the history of that adjustment. There is no break in the continuity: Roman, Celt, Teuton, American, each in his time. No American colony broke 5 Coiistititiional H/sforv of the American People wholly with the past. The necessity for unre- stricted labor compelled a democracy. Had the vast area now comprised within the United States been occupied, at the time of its discovery by Europeans, by a wealth - accumulating people, however civilized, who permitted European con- quest, the conquerors would not have set up a democracy ; the Mississippi valley would have repeated the story of Mexico and Peru, Had gold or silver abounded in New England, Penn- sylvania, or Virginia, the evolution of democracy on the Atlantic seaboard would have been retarded for centuries. Had the mechanical devices famil- iar now in lumbering^, in mininij, in manufactur- ing, and in agriculture been familiar to the world at the opening of the seventeenth century, democ- racy in America would still be a matter of politi- cal speculation. It was the necessity for labor that de.throned the king and enthroned the people in America. But the king is not dead. He never dies. We believe that we have crowned ourselves. We are Celtic yet. Our democracy, however, is not wholly of our own having. It is our political weather. It does not give universal satisfaction. We have had it long enough to tire of some of its virtues, and, if not acquainted with some of its vices, to be suspicious of their existence. The foundation of democracy is the necessity for free labor. If that ceases or is circumscribed, democracy will cease, or will be circumscribed. The fate of de- mocracy hangs on free labor. As long as the 6 Free Labor and the Revolution free man can labor and satisfy his wants in this country, democracy is a condition as well as a consequence of his labor. Remove the field or withhold the rewards of his labor, and democracy will disappear. It will become despotism, and it will go the way of other despotisms. Its fall will be hastened by its complexity. De- mocracy is not so simple as monarchy. It was long ago pointed out by Montesquieu that in a democracy there is need of more virtue than in a monarchy ; for a democracy depends upon the virtue of its citizens, while a monarchy depends upon the virtue of its ruling house. There is essentially the same requisite in both : those who rule must be virtuous. But virtue in a democracy lies close to industry. The state cannot get away from the mine, from the factory, from the soil. The crisis in the history of democracy turns on industrial adjustments. The American Revolu- tion was a war for free labor; its political pur- poses and effects were secondary. The political rights of our grandfathers were scarcely changed by Saratoga and Yorktown ; these contributed to secure their industrial rights. The civil war was a process of industrial adjustment. A democracy must consist wholly of free men ; the old idea of free states and free men must be realized. America was not a democracy until slavery was abolished. If it exists to-day in any form in the United States, then democracy does not obtain among us. There is a record of the evolution of democracy in America which seems to escape common at- 7 Constitutional History of tbc American People tention. It is a record written by hard experi- ence. It is found in the declarations of rights of our five-and-forty State constitutions, and in the amendments to the " supreme law of the land." For instance, the thirteenth, fourteenth, and fif- teenth amendments to the national Constitution were necessitated by the industrial effects of the civil war. They record the national adjustment towards the close of the nineteenth century. Though recorded in political form, they mean an industrial and an anterior fact. They are beyond repeal, just as the steam-engine and the printing- press are beyond repeal. Politics writes after them that their sanction is in Congress, which has power to enforce them by appropriate legislation. This power is of vast import and is to be exer- cised according to the necessities of industrial life. The necessary blending of industry and politics in a democracy is illustrated in the funda- mental laws of the local governments, the consti- tutions of the States. These are the most re- liable history extant of democracy in America. One hundred and sixteen of these constitutions have been adopted since June, 1776. In the only one of the eighteenth century which continues in force, that of Massachusetts of 1 780, the state is declared to be a contract, that the government " may be a government of laws, and not of men." William Penn conceived of the state as a compact, but the government w^as to be a government of men, and not of laws. The evolution of these two ideas is the history of American politics. Politics versus Industry Democracy in America records the contest be- tween laws — a conventional system of politics — and men struggling for industrial freedom. This is shown in the history of the franchise. Experience in administration has passed over into formal statements in bills of rights. These clauses, brief in 1776, have grown into a treatise on civil principles in the present constitutions. Industrial life wrought this change. The provis- ions in these bills are the generalizations on in- dustrial data which record the evolution of democ- racy in all ages. Whatever discord may at present rage in the state, it is but the continuation of the old discord between desire and performance, between condi- tions in the evolution of government and the self- ishness of men. But in the industrial world, as in politics, liberty may run into license. That world has its order and its chaos, its desire and its per- formance, its theory and its administration. Per- haps it is unfortunate for the fate of democracy in America that we have always attempted to inter- pret it politically. Our books represent it as a political device. It has become almost axiomatic with us to seek the solution of problems in the state by a political agreement rather than by a better industrial organization. Politics and labor are the democratic team ; but politics leads. The state, if corrupt, is regarded as politically cor- rupt. Industry has been the shuttlecock of poli- tics, and those who labor have been viewed as the beneficiaries of the state, and not truly as its 9 Const it lit ioiial History of tbe American People essential elements. The industrial discontents which characterize the present cannot all be right- ly charged against democracy. They exist inde- pendent of the form of government. It was long thought that political equality would secure in- dustrial equality, but the effort to read industrial equality into life has not yet been an unqualified success. At present, the theory is winning popular support that the government — the public business of the state — should be made an industrial, as long ago it was made a political, copartnership. De- mocracy is now construed towards communism, towards a labor copartnership. The political co- partnership, on the basis of equality, has failed to make each citizen rich, and those who have not suspect those who have to be robbers, and look upon the state as the chief robber of all. In other words, democracy in America is showing its mate- rial side. Men are not content w-ith the mere blessings of political liberty ; they demand wealth wherewith to enjoy the blessings. In a democ- racy Nemesis is active. The privileges of democ- racy breed discontent. Whatever the form or the idea of the state, man cannot get rid of him- self. His philosophy, his vagaries, his stomach, are always with him. Democracy is not an insur- ance against the consequences of being born into the world. It is no panacea. It has been quite a fashion, in this country, to maintain that our polit- ical institutions are a Providential device for " re- dressing the wrongs of the Old World." There can be no such device. The state is no better Test of Healthy Statesmanship than the men and women in it ; it can do no more than they. A sound statesmanship starts with a sound man. If no such man exists, then he must de- velop before the healthy state can come. And the people know this ; whence their lack of rever- ence for the state. It is a thing which they made, and they know its imperfections. " Vanitas vani- tatum !" They have made nothing. Did the farmer make the apple, or the gardener the flower.? It is not only political but industrial honesty that we need. The coin that is current in a sound state has two faces. If on the one side there is to be read, " Man has by nature a political life," on the other it reads, " and an industrial also." Two centuries ago democracy was necessitated by forests to be cleared, mines to be worked, fields to be ploughed, things to be made, social relations and functions to be determined. This was at the threshold of a material age in the evolution of democracy. Some rude adjustments must be ex- pected in politics, while yet the industrial appa- ratus of the people is rude. The intricacies of democracy do not disclose themselves at first view. It is the administration of o-overnment in a democracy that tests its strength. An untouched continent afforded the material opportunity of the modern world. That opportunity was America. Now that the plough has furrowed across the conti- nent, that the primeval forest has been cut down, that the first output of the mines has made their operation more difficult and less remunerative, an Const Hut ion al History of the American People industrial adjustment is thought necessary. The process of that adjustment is complicated, because it involves both the politics and the labor of men. It demands political recognition. Labor calls upon the state for a guarantee. Labor seeks a political formula by which every man may gain wealth. There is no doubt that this condition implies changes in the state. Is the state here- after to be defined as an industrial corporation, a copartnership of men for things.'' -Is the state to be conceived in this material philosophy as a fac- tory for the general welfare? Is it a device to assist those to acquire wealth who are incapable themselves of acquiring it.? Is society to be di- vided into two groups: first, the state and the poor ; second, the rich .? Or is the state, like war, to be the " corrector of enormous times," and the enormity of the times to be wholly adjudged by those who wage the war and who expect to profit by it.*^ Is democracy in America, like monarchy and aristocracy in Europe, to develop class inter- ests, those of the house of Have and those of the house of Want } Our democracy is evidently in a rudimentary stage. In spite of our suspicions of its defects, we like the reformers and their reforms no better. We are certain of one error, the opinion that our democratic institutions would correct the ills of mankind. Now w^e cry to the oppressed of man- kind, " Stay at home and endure your oppressions; we have our troubles, also." Wealth brings leisure, and leisure breeds criti- Elevating Influence of True Democracy cism and discontent. A portion of our discontent arises from our limited notions of democracy. It consists of more than meat and drink and a ballot. The whole man is involved in it. He is somewhat more than an economic integer. His world is also moral and metaphysical. Material results will never satisfy him. The range of his activities is beyond the merely industrial treadmill. Our boasted mechanical devices are in vain if the gain by them is merely more material. Moses and Newton got on well without the steam-engine or the telegraph. Comforts, wearily won, are quickly forgotten when the only capacity is for " more, more." Democracy has for its ultimate that with which it begins — man. It is doubtless productive of un- expected results, but in its evolution it must include the whole interest of man. Every actual state, says Emerson, is corrupt. The element of decay in our democracy is the cheapness at which it holds man. This evil has long been known. It was apprehended by the most democratic of Amer- ican colonizers more than two centuries ago. William Penn had learned from Sidney, and Locke and Montesquieu had learned from Penn. " The great end of all government," Penn de- clares, in his frame of government of 1682 for Pennsylvania,* is " to support power in reverence with the people, and to secure the people from the abuse of power, that they may be free by their just * Charter to William Penn and Laws of the Province of Penn- sylvania (Harrisburg, 1879), p. 93. 13 Coiislitiif tonal History of the American People obedience, and the magistrates honorable for their just administration; for liberty without obedience is confusion, and obedience without liberty is slav- ery. To carry this evenness is partly owing to the constitution " (that is, the theory of the state), " and partly to the magistracy " (that is, the ad- ministration of government). " Where either of these fails, government will be subject to convul- sions; but where both are wanting, it must be totally subverted ; then where both meet the gov- ernment is likely to endure." The convulsion of 1861 was an instance in which one of these failed. It proved that Ameri- can democracy could not be longer administered with its growth retarded by " obedience without liberty." Experience alone can correct the evils in the state. With the leisure of the twentieth century there come its political convulsions. If, in some way, men and women of leisure could see the necessity for labor, in order that government of a democratic kind may endure, they would find fields for their best efforts all about them. Munic- ipal evils are not all in the city -hall. Public charity is self-defence in disguise. If they who have amassed wealth desire its safety, it is better to make the use of that wealth a matter of public concern by bringing to its defence those who might destroy it. Time is the best friend of democracy. The canal-boy of to-day is the Pres- ident of to-morrow. The daughter of old Scrooge founds a hospital or endows a school. Labor will have its own. In the evolution of democracy in 14 A Transformation of Feudalism America industry shall receive its own, and poli- tics shall have its own, and no more. The admin- istration of government is the chief public concern. But in that administration man must be credited his full estate. Man, the citizen, must reckon with himself, and face his own destiny. Though crafty devices may seem to shift the burden of citizen- ship, the burden will always be found in the ever- increasing wants of the citizen himself. In democ- racy, as in other forms of the state, it is govern- ment of man for man that is wanted. Thouo;h the state be convulsed, though it be subverted, man will remain. The evolution of man is the hope of the state. In a democracy it is better to have a government of men rather than a government of laws. Then, whatever the forms of the state, the great end of all government will be secured. My theme is a history of the evolution of de- mocracy in America ; and by the term democracy is to be understood the form of government, not the doctrines of a political party. The civil insti- tutions of a free people are composite. Those of America are both a survival of the past and a promise of the future. A determining factor in the development of government in Europe was feudalism. In America feudalism was trans- formed rather than obliterated. In place of the feudal system was substituted a system of checks and balances in government, by means of which the integral parts of civil society were duly func- tioned and the unity of the whole preserved. At least, this is the theory which American democ- 15 Constitutional History of the Americau People racy sets forth at the time when, colonialism having been transformed into continentalism, con- tincntalism was again transformed into nationality. Little is heard in our day of that favorite device of American statesmen of the eighteenth century : the device of checks and balances. And chiefly for this reason : that the test of government in our time is its administration, not its theory. A history of the development of constitutional gov- ernment in America is a history of political theo- ries, political principles, and political administra- tion. If democracy as a form of government is worthy of the support of mankind, it must rest upon political principles, and the history of the inter- pretation and application of these principles will be the history of the evolution of popular govern- ment. Although our constitutional history appar- ently involves elaborate analysis of many laws and constitutions, yet the principles upon which our political institutions are founded are few. I know of no better formulation of these principles than that made by Webster.* Popular government rests on the basis of representation ; the will of the majority is the force of law ; the law is the supreme rule in the government of all ; the supreme law is declared in written constitutions ; public education is the diffusion of true morality. Webster's in- clusion of education as a paramount factor in the * Address at the laying of the corner-stone of the addition to the Capitol, July 4, 1851. See also Plymouth oration, December 20, 1820; Bunker Hill oration, June 17, 1843; and argument in Luther ^'J. Borden, January 27, 1848. 16 Education the Guardian of Public Safety state was made before a system of public schools, supported by public taxation, had been adopted in any American commonwealth. Webster to the end of his life showed the effect of social condi- tions which prevailed in America in his earlier years. Then it was commonly believed that po- litical privileges could safely be intrusted only to those who proved themselves worthy by possess- ing property, usually realty, and by professing be- lief in a religious creed. Property and religious qualifications were thought to be the guardians of public safety. The elector, therefore, was required to comply with them, and the elected not only to profess his belief in a prescribed creed, whether fixed by law or by public opinion, but also to pos- sess a greater amount of property than that re- quired of the elector. Since Webster's time, pub- lic opinion has changed, and in place of property and religious qualifications it has substituted man- hood suffrage. Webster's grouping of the prin- ciples on which government in America is found- ed differs in language rather than in thought from doctrines made familiar to the world largely through the instrumentality of Thomas Jefferson and his disciples — the social compact, the equality of man, the right of revolution. Neither science nor ex- perience sanctions the doctrine of the equality of man ; yet this unscientific and a priori idea must unhesitatingly be accepted as one of the paramount forces in American democracy. It is a doctrine which depends for its significance largely upon popular enthusiasm. Yet so effective has it I. — B 17 Coiistitnlioiial History of the Amcriiau People proved in practical administration that it must be recognized as a permanent element in the evolution of our civil institutions. Because of this doctrine the full significance of the transi- tion from a military to a civil basis in government in America may be measured. And undoubtedly because of this doctrine there will be measured hereafter the true meaning of the transition now going on from a military to an industrial type of society. During the seventeenth century the colonists worked out, perhaps unconsciously, a practical definition of many civil rights of man. Yet sev- eral of these rights were to be worked out at a later day : as the right of freedom of speech, free- dom of the press, and exemptions from unwarrant- able searches and seizures. The period of this evolution may be said to terminate with the clos- ing years of the seventeenth century, and the year 1689 may be named as the time when this phase of the evolution of American democracy closed. With the opening of the eighteenth cen- tury popular government, though as yet latent in the bud, rapidly evolved in measures of adminis- tration, both colonial and imperial, until at length antagonistic interpretations of civil administration precipitated the American Revolution. That Rev- olution, which gave us our independence as a na- tion, was not fought to prove a theory. Rather was it the natural, though painful, conclusion of many matters which had long been in civil litiga- tion. It was a revolution which affected England 18 Expansion of the Principles of the Revolution quite as much as America: for the resolution of civil affairs after 1776 was more liberal through- out the entire English-speaking world. It was a deadly blow to feudalism, and particularly to that cruel form of feudalism, the mercantile theory. At first reading the Revolution seems to have been a blow struck against the Crown. It was, indeed, a blow, and the Crown typified the object against which it was levelled, but the type was tyrannical industrially quite as much as politi- cally. It must not be forgotten that government is a natural product. It is a phase of the evolu- tion of civilization. When events have resolved themselves into historical perspective the truth of this is evident. Our fathers builded wiser than they knew, for they builded for all time. They who build in harmony with the natural develop- ment of civil institutions are building just as wisely. Each generation thinks itself face to face with a crisis, but the crisis passes away, leaving many of the old problems still unsolved. The literature of America at the time of the Revo- lution of 1776 is a literature of reason and ex- postulation. It is a literature whose content is the accumulated wisdom of man. It is composite, comprehensive, and prophetic. Yet the true char- acter of the democracy of the eighteenth century is probably clearer to us now than to those who lived then. Political enfranchisement was prac- tically concentrated in the closing years of the eighteenth century, and it signified a reorganiza- tion of the state rather than any discovery or in- 19 Cousin lit ional History of tbc American People novation in civil affairs. The cardinal doctrine of the time was that of the equality of men ; a doctrine which is profoundly ethical, but not profoundly intellectual. The democracy which evolved from that germ has applied political ideal- ism to the state. For this reason American de- mocracy is measurable not by its forms and va- ried functions only, but by its social ef^ciency. For this reason the national is paramount to the commonwealth idea. If the Americans possess political genius in any degree it is for adapting old institutions to new wants. They do not tear down the political edifice, but rather make such additions and repairs as seem necessary from time to time. Yet behind the mere mechanics of de- mocracy a true organic development is recogniz- able. American democracy, like Greek poetry, is the presentation of the whole estate of man. A history of the evolution of democracy in America must be limited to particular phases, such as the literary, the ethical, the industrial, or the constitu- tional. These elements, and others that might be mentioned, are co-ordinate and comprise the grand theme. The historian shrinks from attempting to trace the record of democracy in all its phases. He must be satisfied, and indeed thrice happy, if he is able to trace, even imperfectly, the record of a single phase. It is my purpose to record some constitutional phases of the development of American democ- racy. This record, fortunately, is accessible in forms of indisputable value and worthy of our Sequence of Political Aspirations faith. Among these are the organic laws — that is, the body of American constitutions of govern- ment, which begin with the charters in the earlier years of the seventeenth century and continue in the written constitutions of our own time. Yet these do not contain the whole story. There are other laws, the work of Legislatures, and also trea- ties and agreements between America and other nations. Running through all these acts is an un- broken course of political thought, a commentary, as it were, on principles upon which the integrity of our institutions depends. These principles ap- pear in different aspects at different times. Thus, at the close of the eighteenth century they are conspicuous in bills of rights and the first written constitutions of the country. Later they appear in the effort to administer the government of the United States and of the commonwealths, and es- pecially in the discussions in State Legislatures, in political conventions, in Congress, in the courts, and in conventions which have given us the later con- stitutions of government. The history of Ameri- can democracy, therefore, is a history of political thought rather than of individuals. If it lacks feudal interest, it possesses the charm of civil equity. It is a history of the development of equal social opportunities. It is, indeed, an in- dustrial history in a political form. Looking back- ward now, we see how the crises in American af- fairs have terminated in a new enlightenment of public opinion and in a more perfect understand- ing of the powers, the privileges, and the duties 21 Coiisfiliifioiidl History of the American People of men. Democracy must be distinguished from ochlocracy. Popular government does not signify the passions of a mob. If four centuries of civili- zation in America have any meaning, it is that popular government is conscious of its solemn responsibilities. This consciousness is suggested in many ways, and perhaps in none more per- suasively than in the sensitiveness of American democracy to suffering and wrong, as the numer- ous benevolent institutions of the land testify. Few, if any, of these existed before the Declaration of Independence. They were founded in great numbers after 1850. At some time during this three-quarters of a century the transition was made, in this country, from ancient egoism to modern altruism. Under the old regime the only ties held sacred were the ties of blood ; under the new, the ties of humanity are equally sacred. In the normal development of our institutions, these ties will be venerated in equal degree. Already the military type has almost disappeared from our insti- tutions, and with the ascendency of the civil power the whole people have been enfranchised. No evi- dence of this enfranchisement is of profounder sig- nificance than the extinction of slavery, which, delayed for centuries, but swift at last, was an al- truistic process, and one inevitable in a democracy like our own. Ancient legislation knew little of the individual except as he was a member of the most favored class. Modern legislation emanci- pates individuals with impartiality. The record of this benevolence is clearly marked in the evo- Development of National Government lution of American democracy. And it is to be found in places in which many might not at first search for it. Our national government has long attracted and concentrated the attention of our own people, and, to some extent, of the people of other lands ; but our national government is only a part of our democracy. The commonwealths are in many respects closer to us than the nation, and do not so widely differ one from another as to pre- clude tracing the principles on which the institu- tions of each are founded. The colonial era, the beginning of government in America, may be said to cease with the treaty of Paris of 1763, when the North American continent came practically under the control of the Anglo-Saxon race. From the treaty of Paris to the Declaration of Independence was a brief interval of continentalism, during which public opinion was for the first time formulated under a dominant idea. With the Declaration there also went out to the world the first consti- tutions of the States in which the best of colonial- ism survived, and the transition to a more perfect form of commonwealth organization was effected. These, being imperfect, soon made way for a second group, and with this came the national Constitu- tion, itself a composite, and the survival of earlier ideas of union. For nearly one hundred and fifty years before the making of the national Constitu- tion, the people of America had been tending towards industrial and political union. Although no perfect union was effected, many attempts were made, beginning with the union of the four New 23 Const il lit iothil History of the Amcricau People England colonies in 1643, ^"^ concluding with the Articles of Confederation of 1781. These at- tempts record the evolution of the national idea, and are the parent of the Constitution of 1787. Parallel with this growth of national ideas was the development of the more perfect common- wealth, beginning with the charters and conclud- ing with the first State constitutions in 1776. Dual political ideas thus grew up in the land, and their duality became a characteristic of democracy, plainly recognized after the treaty of Paris, and duly functioned in the organic laws of the States in the concluding years of the eighteenth century. This was a century of political theories and def- initions set forth in bills of rights which remain almost unchanged to our own day, and probably will continue to be recognized on this continent as the accepted statement of political and civil rights. Their chief quality is their recognition of the rights of the individual. They made the free man the centre of the civil system. Every bill of rights of the eighteenth century emphasized him as the chief element in society to be conserved. If we look for some formula for the conservation of the state, we shall not find it in the eighteenth cen- tury. A century later, a constitution commonly sets forth some rights of society, of the community, of the state. Another characteristic of eis^hteenth- century political thought was its emphasis of politi- cal theories. This was inevitable. Theory pre- cedes practice, especially in affairs of state, and colonial practice in government had been efficient 24 The Constitution the Parent of Parties chiefly in the evolution of bills of rights. The difference between theory and practice in govern- ment is well illustrated by comparing the national with any of the earlier State constitutions. The national Constitution originally contained no bill of rights. It was intended to be administrative, not theoretical, in character. It contains no def- inition of nationality ; no definition of what is meant by " We, the people of the United States"; no definition of the exact relation between the Union and the States; no definition of the precise limits of State or Congressional legislation. In- deed, it is an instrument conspicuously lacking in what many might seek in the supreme law of the land. The omission of definitions has proved the wisdom of its makers and the opportunity of posterity. It has given ample scope to the Ameri- can people to exercise their political genius in ad- justing themselves to new industrial and political conditions. The Constitution never laid down hard and fast lines of civil procedure. Yet, chiefly because such fundamental provisions were lacking, the conduct of national politics fell inevitably into the hands of political parties, and government be- came an affair of administration. Parties did not exist in colonial times, and they are yet in the in- fancy of their power. They afford full opportunity for the genius of individuals, and are the responsi- ble means by which a conscious people adjust themselves to changing conditions. A constitutional history of democracy in Amer- ica is, therefore, a history of political and civil 25 Const it lit ioiial History of tiic American People adjustments, usually recorded in laws and consti- tutions. The industrial and social forces which have determined the development of our institu- tions have determined the character of the law of the land. The first group is continental, compris- ing the constitutions of the Revolutionar}^ era, coinciding nearly with the last twenty -five years of the eighteenth century. During the first half of the nineteenth century appear another group of constitutions, which record the first efforts of the American people to administer their theories of government in the light of a wider experience and under the compulsion and opportunities of a new industrial life. During this half-century the contending political systems of the country were exhaustively formulated, and attempt was made to solve in the forum problems later solved on the battle-field. From 1850 to 1876 was the era of a counter-revolution, during which public opinion formulated the thought of the new nation. Later constitutions are a recognition, by the people of the United States, of the true character of social efficiency of a national type. The people applied their notions not only by amending the national Constitution, but also by changing the constitu- tions of many of the States. After 1876, and dur- ing the remaining years of the nineteenth century, industrial reforms were attempted through the agency of these supreme laws. Industrial enfran- chisement compelled a reorganization of the state, which was carefully recorded in its supreme law. Democracy is equally interested in the state and in 26 The Altruism of Democracy the citizen. Until recent years it seemed inter- ested in the citizen only. It tolerated the state as an evil necessary for his welfare. The history of democracy is, therefore, chiefly of the citizen : his theories, his complaints, his political strivings, his victories, his disappointments. The important chapters in that history are on the franchise, on representation, on the powers of public servants. The state, until recent years, has been conceived as a creation rather than an organism ; as a compact rather than as an entity. Its functions are large- ly a discovery of the nineteenth century. Some may say that the modern state is not so much a discovery as a new resolution of social forces. Whatever be the form in which we cast the thought, the fact remains — and, in this country, is evident — after comparing the last State constitutions with the first. If the change be evolution, it is from citizen to society; from the concept of govern- ment, as established solely for the benefit of the individual, to the concept of the community, the state as a being responsible to every citizen and to society. The state has rights which the indi- vidual is now bound to respect. Like him, it is, or should be, altruistic. As the centuries pass, the American commonwealths will revise their constitutions. Thus far there has been, on the average, a new State constitution every year since 1776. Propositions for new ones have been more frequent ; amendments, a common occurrence. The ease with which amendments, revisions, or even new constitutions are secured, suggests that 27 Coiisiifiif/oihil H/sforv of the AnhTicaii People the people, like Jefferson, regard a constitution as of little higher authority than an act of the Legislature, Every political campaign in which great issues are involv^ed has led to some change in State con- stitutions, and not infrequently to new ones. This was conspicuous between 1830 and 1840, when franchise reforms that had been agitated for a oreneration were embodied in constitutional re- vision; again, from i860 to 1870, when reforms in the franchise and in the basis of representation were carried into every constitution in the country; and again from 1889 to 1895, when economic re- forms affecting labor, transportation, capital, and the franchise, were embodied in the constitutions of the Northwestern States. Other changes have during the century been made affecting the powers of the Legislature and of Governors, the manner of choosing judges, the organization of the ad- ministrative department, finance, education, and local government. As has been said of the state, so may it be said of all these changes — they were once a private thought. It is the purpose of a history of democ- racy to make the state a private thought again. CHAPTER II THE FORM OF DEMOCRACY IN THE EIGHTEENTH CENTURY In the closing years of the seventeenth century North America gave little promise of becoming a continent of commonwealths.* Along the Atlan- tic coast extended the English colonies, inhabited * The principal authorities for this chapter are the State con- stitutions and laws, 177 5-1 800, and the proceedings of conven- tions during this period : Maryland. — Proceedings of the Conveniions of the Province of Maryland, held at the City of Annapolis in 1774, 1775, and 1776. Baltimore: James Lucas & E. K. Deaver. Annapolis: Jonas Green, 1836, 8vo, 378 pp. Massachusetts. — Journal of the Convention for Framing a Constitution of Government for the State of Massachusetts Bay, from the Commencement of their First Session, September i, 1779, to the Close of their Last Session, June 16, 1780, Including a List of the Members. With an Appendix — containing: i. The Resolve for Ascertaining the Sense of the People on the Subject of a New Constitution. 2. The Form of Government Originally Reported by the General Committee of the Convention. 3. The Address to the People. 4. The Constitution as finally Agreed upon by the Convention, and Ratified by the People, with the Amendments since Adopted. 5. The Rejected Constitution of 1778. Published by Order of the Legislature. Boston: Dutton & Wentworth, Printers to the State, 1832, 8vo. 264 pp. New Hampshire. — Journal of Colonial Congress, December 21, 1775, to January 5, 1776. Historical Magazine, October, 1868, pp. 145-1 54. Collections of the New Hampshire Historical Society, Vol. iv. State Papers of New Hampshire, Edited by Albert Still- 29 Const it iiiioiidl History of the American People by about three hundred thousand people, An_trlo- Saxon stock predominating — a smaller population than may now be found in some Coni^ressional dis- tricts. England claimed territory to the South Sea, man Batchellor, Vols, xx., xxi., xxii. Provincial Papers of New Hampshire, Vols, vii., viii. Journal of the Convention which Assembled in Concord to Revise the Constitution of New Hamp- shire, 1791-1792. Edited by Nathaniel Bouton, D.D. Concord: Edward A. Jenks, State Printer, 1876, 8vo, 198 pp. New Jersey. — Extracts from the Journal of Proceedings of the Provincial Congress of New Jersey, held at Trenton in the months of May, June, and August, 1775. Published by Order. Bur- lington: Printed and Sold by Isaac Collins, mucclxxv., Wood- bury, N. J. Reprinted by Order. Joseph Sailer, Printer, 1835, 8vo, 241 pp. Journal of the Votes and Proceedings of the Con- vention of New Jersey, Begun at Burlington, the tenth of June, 1776, and thence continued by Adjournment at Trenton and New Brunswick to the twenty-first of August, following. To which is annexed Sundry Ordinances, and the Constitution. Published by Order. Burlington : Printed and Sold by Isaac Collins, MDCCLXXVI. Trenton : Reprinted by Order. Joseph Justice, Printer, 1831, 8vo, 100 pp. Eumenes, being a Collection of Pa- pers, written for the Purpose of Exhibiting some of the more prominent Errors and Omissions of the Constitution of New Jersey, as Established on the Second day of July, one thousand seven hundred and seventy-six ; and to prove the necessity of Calling a Convention for Revision and Amendment. Trenton: Printed by G. Craft, 1799, 8vo, 149 pp. New York. — Journals of the Provincial Congress, Provincial Convention, Committee of Safety, and Council of Safety of the State of New York, 1775, 1776, 1777. Albany : Printed by Thur- low Weed, Printer to the State, 1842, Vol. i.. Large Folio, 1196 pp. See also soine account of the making of the New York Constitution of 1777 in pp. 691-696 of Reports of the Proceedings and Debates of the Convention of 1821, Assembled for the Pur- pose of Amending the Constitution of the State of New York : Containing all the official Documents Relating to the Subject, and other valuable matter, by Nathaniel H. Carter and William L. Stone, Reporters ; and Marcus T. C. Gould, Stenographer. Albany: Printed and published by E. & E. Hosford, 1821, 8vo, 703 pp. 30 Contending Forces for Supremacy but was not in possession beyond the Alleghanies. From these mountains westward farther than any- white man had explored, was New France, compris- ing the vast region drained by the rivers St. Law- North Carolina. — The Journal of the Proceedings of the Pro- vincial Congress of North Carolina, held at Halifax, the twelfth day of November, 1776, together with the Declaration of Rights, Constitution, and Ordinances of Congress. Newbern : Print- ed by James Davis, 1777, Small 4to, 84 pp. (Sabin, 394, c. 55.632). Pennsylvania. — The Proceedings Relative to Calling the Con- ventions of 1776 and 1790, the Minutes of the Convention that formed the Present Constitution of Pennsylvania, together with the Charter to William Penn.the Constitutions of 1776 and 1790, and a View of the Proceedings of the Convention of 1776, and the Council of Censors. Harrisburg : Printed by John S. Wrest- ling, Market Street, 1825, 8vo, 384 + iv. pp. Minutes of the Convention of the Commonwealth of Pennsylvania which com- menced at Philadelphia, on Tuesday the twentj^-fourth Day of November, in the year of our Lord one thousand seven hundred and eighty-nine, for the Purpose of Reviewing, and if they see occasion. Altering and Amending the Constitution of this State. Philadelphia : Printed by Zachariah Poulson, Jr., in Fourth Street, between Market Street and Arch Street. mdCCLXXXIX., folio, First Session, 147 pp.; Second Session, 147-222. Minutes of the Grand Committee of the Same, folio, 107 pp. Tennessee. — Journal of the Proceedings of a Convention Begun and Held at Knoxville, January 11, 1796. Knoxville : Printed by George Roulstone, 1796. Nashville: Reprinted by McKennie & Brown, True W/n^ Office, 1852, 8vo, 32 pp. Vermont. — Vermont State Papers, being a Collection of Rec- ords and Documents connected with the Assumption and Es- tablishment of Government by the People of Vermont, together with the Journal of the Council of Safety, the first Constitution, the early Journals of the General Assembly, and the Laws from the year 1779 to 1786 inclusive. To which are added the Pro- ceedings of the First and Second Councils of Censors. Compiled and published by William Slade, Jr., Secretary of State. Middle- burg: J. W. Copeland, Printer, 1823, 8vo, 567 pp. Collections of the Vermont Historical Societ3^ Vol. i. Montpelier: Printed for the Society, 1870, 508 pp. Vol. ii., Id., 1871, 530 pp. In Vol. i., 31 Const it lit ioiial History of the Aimrican People rence and Mississippi and their tributaries. Farther southward and westward lay New Spain, greater in area than New France. The English feared two foes — absolutism and the papacy, and were on the defensive. The struggle which for centuries had raged in the Old World between absolutism and democracy broke out in the New at the close of the seventeenth century. Antagonistic systems of gov^ernment were contesting for the possession of America. In the English colonies were the germs of representative government and free common- wealths. The fate of half the globe depended on what victories might be won in the Ohio Val- ley. In decisive results, Wolf's victory on the Heights of Abraham was to take rank with Marathon and Cannae. Probably, the pioneers who, during the long campaign from Braddock's defeat to Yorktown, won America for liberty the Conventions of 1776-1777. In Vol. ii., Vermont as a Sover- eign and Independent State. Virginia. — The Proceedings of the Convention of Delegates for the Counties and Corporations in the Colony of Virginia, held at Richmond Town, in the County of Henrico, on the 20th of March, 1775. Reprinted by a Resolution of the House of Del- egates, of the 24lh February, 1816. Richmond: Richie, True- heart & Du-Val, Printers, 1816, folio, 54 pp. The Proceedings of the Same on Friday, the ist of December, 1775, and after- wards by Adjournment in the City of Williamsburg, Id. and lb., folio, 116 pp. The Proceedings of the Same in Williamsburg, on Monday, the 6th of May, 1776, Id. and lb., folio, 86 pp. Ordi- nances Passed at a General Convention of Delegates and Repre- sentatives from the several Counties and Corporations of Vir- ginia, held at the Capitol in the City of Williamsburg, on Monday, the 6th of May, Anno Dom.. 1776. Reprinted by a Resolution of the House of Delegates, of the 24th February, 1816. Rich- mond, supra, folio, 19 pp. 32 Growth of Popular Government never compassed the magnitude of the drama in which their sufferings and their victories were early scenes. They were men much like our- selves, and the emotions that stirred their lives, the services they rendered, the ideas for which they contended, the record which they made in found- ing new States and a new nation are elemental forces in democracy in America to-day. They bequeathed to us the heritage of representative government Time has obscured their action, as it obscures the deeds of all men. But the political institu- tions which sprang up after them, though feeble and isolated at first, unwelcome to the govern- ments of the Old World, and, when by necessity ac- knowledged as a new power, coldly received into the family of nations, were destined to overspread a continent and to demonstrate, for the first time, the vitality and efficiency of popular government on a vast scale. During the seventeenth century, and the greater part of the eighteenth, the col- onies prospered under charters granted by the Crown and in substance differing little one from another. The charter to Penn contained a unique provision recognizing the right of Parliament to levy a tax on the colony.* Most fateful for the colonies was the privilege of the Assemblies to pass laws that should conform as nearly as possible with the laws of England. Here was the entering * Charter to Penn, March 4, 1681, sec. 20. Proceedings of conventions of 1776 and 1789. Pennsylvania, Harrisburg, 1825, p. 16. Constitutional History of the American People wedge of democracy in America. Gradually, and it may be said naturally, the Assemblies assumed the right to judge when a law should be more American than English. This claim of right was the foundation of American independence. From their incorporation, therefore, the colonies, though fairly uniform in general character, tended to differ among themselves in local government. The local spirit was from the first stronger than the continental, and doubtless would have prevailed had not James the Second attempted to merge the colonies into groups, each having its civil system, with ultimate merger in a government whose ex- ecutive and judiciary should be appointed by the Crown ; whose common Assembly, though elected by the people, should be stripped of all discre- tionary authority. To the colonists this was ab- solutism, and, consciously or unconsciously, their opposition to it awakened a continental spirit, the parent of the national idea. Thus, before the close of the seventeenth century America was at the threshold of a new civil experience, the distinguish- ing: feature of which was the formulation of the " ancient and undoubted rights of the people of the colonies." A like process was going on in England. The famous Bill of Riohts of 1688 is con- temporaneous with like measures in the colonies. Americans are more familiar with the political speculations that dominated the country in 1776 than with those, equal in influence, that dominated it nearly a century earlier. One clause of the Eng- lish bill of 1688 survives in its original form in the 34 Forebodings of the Revolution Constitution of the United States,* and in many State constitutions ; but it was not accompanied in the seventeenth century by those provisions with which it is now associated. Freedom of worship, freedom of speech, and freedom of the press are rights which were worked out in this country — that is to say, they were worked out in that Anglo- Saxon world which is divided into two parts — Eng- land and America. They are rights which in no sense are of Celtic or Latin origin. On them, and those soon worked out with them, rests all consti- tutional government in America. The New York Assembly in 1689, in spite of the opposition of the Crown, set forth for the first time in a formal bill on this continent those rights which became the foundation for political ideas involved in the American Revolution.! This Assembly was the parent of that portion of the American constitu- tions of government which we call the Declaration of Rights — the most permanent part of our civil system. The ideas involved in them were the issue in the struggle of England, France, and Spain for the possession of America. The first phase of this struggle was international, and closed with the treaty of Paris and the disappearance of New France from the map of America. Thirteen years passed and a new name appeared — the * Art. viii. t In most of the charters; those of Virginia (1606) and Mas- sachusetts (1629) are typical. The Assemblies early began to "confirm the charters" — z.e., Magna Charta and the Charter of the Forest — as in Rhode Island, 1663; North Carolina, twenty- five times, etc. See Martin's Laws, North Carolina, 1792. 35 Constitutioual Hisforv of the American People United States. Colonies had become commun- wealtlis, organized on the basis of these ancient rights which, save in Rhode Island, had been formally adopted as the essential part of a written constitution. Each proposition recorded a victory of democracy over monarchy — of individualism over absolutism. Therefore every clause is a sur- vival, in brief, of struggles that go back well towards the earliest moments of recorded time. Bills of rights, the portion of the supreme law which seems to many trite, if not superfluous, are the summary of ages of struggle for human rights. In America, the Virginia bill, compiled chiefly by George Mason, records the close of an initial chapter in the history of democracy. We shall see, later, how the chapter has been continued, and from what sources it is derived. Each generation of Ameri- cans has added to it. Individualism — and, later, communalism — are there. In our day the grinding necessity of industrial morality is adding clauses of a nature undreamed of when the New York Assembly enacted its epoch-making bill, or when, a little less than a century later, Mason wrote the Virginia Declaration. In the State constitutions many provisions respecting the legislative, the ex- ecutive, and the judiciary prove to be temporary. Nearly every provision in the various declarations of rights has proved to be essential to the stabil- ity of representative government. The growth of our bills of rights is, therefore, indexical of the charter of the American state. As France and Spain, in turn, retired from 36 state Constitutions the Product of Time North America, the English-speaking race was left with a continent on its hands whereon repre- sentative government might freely develop. This opportunity of democracy is without parallel in history. For the first time, as events proved, pop- ular government on a vast scale was to be put to the test. When the transition from colonies to commonwealths came, it seems, at first glance, al- most instantaneous. The State constitutions of 1776 seem struck off at a single stroke in a sense that is not true of the national Constitution. A little reflection, however, will demonstrate that the constitutions, State and national, which distinguish America during the last quarter of the eighteenth century are in no sense political miracles or the product of chance or sudden ideas. These instru- ments must be taken, in the aggregate, as the written form of a political organism long growing and essentially homogeneous. They give the po- litical fabric a common pattern. They register the civil experience, not of the colonists only, but of the people of other and earlier times. They may be called chapters in the Bible of politics contributed by democracy in America. There- fore, they must be considered together as a politi- cal unit, whose details are local applications of a few common principles contained in the bills of rights. These constitutions have a common origin in experience and speculation — the experience chiefly that of the colonists themselves ; the speculation that of a few philosophers, of whom Montesquieu 37 CoiislHiitional History of the American People was most influential. Gradually the ancient civil rights of Englishmen, made familiar by charters, came to be considered as natural. Long exercise of charter rights made the notion easy — however unphilosophical. Colonial isolation compelled a liberal interpretation of the clause in the charters permitting Assemblies to pass laws as nearly as may be in conformity with the laws of England. There could be but one consequence — the Ameri- cans would ultimately claim that their own Assem- blies possessed the exclusive right, constitution- ally, to impose taxes, and that local circumstances forbade colonial representation in Parliament. The Americans had a century and a half of experience in popular government when the first State constitutions were made. During this time they worked out the principles embodied in their first bills of rights, and accumulated an admin- istrative experience which they reduced to three workino^ formulas : the articles on the leo^islative, on the executive, and on the judiciary. These ar- ticles are essentially a political photograph of the colonial governments in those last days, just be- fore transformation into States. But it must not be forgotten that the photograph was corrected, as it were, by adding ideals. Compared with con- stitutions made at the close of the nineteenth cen- tury, these of the eighteenth seemed colonial rath- er than commonwealth in character. In as far as they departed from colonial expe- rience, they show the influence of Montesquieu. His Spirit of Laws was published in 1748, and its ;8 Montesqineii' s Influence on Our Constitution influence on America was like that of Aristotle's Politics on the institutions of Europe. The com- monwealth constitutions of the eighteenth cen- tury were made, nominally, by conventions, though in many instances by Legislatures. It may be said that the twenty-six constitutions of the period were thought out by about the same number of men — the most eminent Americans of the age. Most of these met in the convention that made the na- tional Constitution. They had already partici- pated in a similar work for their own States, and some of them assisted in revising their State constitutions after the national Constitution was adopted and the new government was established. To these men the Spirit of Laws was a manual of politics powerfully contributing to a general unity of sentiment in the State instruments, and particularly in the Constitution of the United States. In spite of popular disbelief, it is the phil- osophical thinker who regulates the form of the state. He works out a civil economy, which, cor- rected by popular experience, at last becomes the form of government in the state. Of less, though of great influence on American institutions, were Milton, Hobbes, Locke, Sidney, Harrington, and Penn. The best of their political speculations became the common intellectual property of thoughtful Americans, and in political form were incorporated in the constitutions of the eigh- teenth century, and, slightly modified, are found in all that have been adopted since. Twenty - five years later than Montesquieu's 39 Const it iii ion al History of t/je American People Spirit of Laws, appeared Blackstone's Commenta- ries — destined at once to become the principal legal text-book of the English race. In spite of its ultra - monarchical ideas, it profoundly influ- enced American political thought.* Montesquieu was speculative ; Blackstone, practical and defini- tive. The Commentaries, as did no other book, as- sisted American statesmen in giving legal form to democratic ideas of government. The American Revolution would have wholly miscarried had its principles failed to attain expression in legal form : so much are men controlled by appear- ances. This is well illustrated in a statement in the Declaration of Independence, and repeated in every State constitution, that the people have the right to alter or abolish any form of government that they judge destructive of their rights. All the eighteenth-century writers emphasize the im- portance of the form of the government; the form is considered as essential to the right exercise of civil functions. Though acknowledging the right of the people to change the form, neither the con- stitutions of the period nor the writers upon them hint at any right to alter or abolish the principles on which the form rests. That the monarchical Blackstone so practically contributed to the es- tablishment of democracy in America is a para- dox not without parallel in history. Two other English philosophers whose works * The first American edition, in four volumes, was brought out in Philadelphia, by Robert Bell, in 1771. 40 l/oltaire and Franklin Considered appeared with Blackstone's, at the outbreak of the Revokition, profoundly influenced American insti- tutions. Hume anticipated both the French and the American revolutions, and Adam Smith* antic- ipated the economic course of American life. The most subtle influence on America was wielded by him, to whom, says Lowell, " more than to any other one man we owe it that we can now think and speak as we choose."! Voltaire's influence was that of an institution rather than that of an in- dividual. It largely contributes to that seculari- zation of the state which distinguishes government in America from all other governments, ancient or modern. America was not lacking instruction from a philosopher of native birth, Franklin, who was scarcely less influential than any of his contempo- raries.^ The characteristic of the political thought of the age was individualism. The state was called into existence to protect the individual. This is the dominant idea of every bill of rights of the eighteenth century, and indeed of all until recent years. The state is not described at that time as having " ancient and undoubted rights " which the * Washington annotated his copy of Smith, showing careful reading. It now belongs to Joseph Wharton, Esq., of Philadel- phia. For an estimate of the influence of The Wealth of Nations, see Lecky's History, Vol. iv., p. 328. t Latest Literary Essays {Gray), 1892, p. 12. I Smith read chapters of The Wealth of Nations to Doctor Franklin, as it was composed, for his criticism. This may ex- plain the numerous allusions to America in the work. See Wat- son's Afinals of Philadelphia, Vol. i., p. 533. 41 Constitutional History of the American People individual must respect. He was the centre of the political system. The altruistic function of the in- dividual citizen which is implied and occasionally expressed in the later constitutions was not thought of in Franklin's day, and it was a long day from the accession of Queen Anne to the death of Franklin. His ideas are characteristic of a cen- tury later, in that he emphasized the administra- tion rather than the theory of government. His oft-quoted speech in the Federal Convention, in which he said that there is no form of government that may not be a blessing to the people if well administered, suggests the test to which every political proposition must at last be subjected. It is the test which best discloses the difference between the American and the French constitu- tions of government. Ours rarely contains a def- inition, and more rarely political speculation, but is practical and administrative in character. Be- cause of this quality, the national Constitution has survived the fiercest test to which it is possible to submit a political system, the ordeal of civil war. Had it been a document abounding in po- litical speculation it would now be known only to the collector of curious schemes of government. Franklin's individualism ultimately found political application in the essential doctrines of that great party of which Jefferson is commonly called the founder. His influence for this reason has been, and to this day is, confounded with that of Jeffer- son and Voltaire. It differed from theirs in be- ing more conservative. Its conservatism consisted 42 Jefferson and the Rights of Man in its sanity. His conception of government was one based on experience and " adapted to such a country as ours." The import of Frankhn's em- phasis of the administrative test is seen in the constitutions adopted after 1850, in which the ad- ministrative gradually appears as a separate arti- cle. After 1876 it begins to be recognized as the fourth department of government, ranking with the legislative, the executive, and the judi- ciary. The history of this new department is one of civil adjustments. To ascertain, readily, the im- portant changes in our political institutions since 1776, one must turn to the administrative provi- sions of State constitutions last adopted and trace their growth from constitution to constitution during the intervening years. In later years, when the very form of a State constitution became a party question, the influ- ence of Jefferson largely dominated American thought. He stood for the rights of man as these were expressed in the Declaration of Indepen- dence, or were read into it by party interpretation. During the eighteenth centur}- his influence fell far short of what it became after the party he was instrumental in organizing obtained possession of the national government. During the half cen- tury following his death, when in one form or an- other slavery and State sovereignty were national issues, and the extension of the franchise and the change from property to persons as the basis of representation were State issues, JefTerson was idealized as the political philosopher and reformer, 43 Consiiliilioiial H/sfo/y of the American People and his ideas, as interpreted by a powerful party, were of paramount influence in many States. But his influence was always strongest in the newer parts of the country. The Declaration of Inde- pendence was almost immediately accepted as a national bill of rights ; it was cited in several State constitutions, and was prefixed without change to the constitution of New York of 1777. The Revolution was a reconstruction of the the- ory of the state. Henceforth the rights of men should be considered to be natural and inherent, and not, as before, a grant from the Crown. In England, the Revolution of 1688 resolved the state into a constitutional monarchy ; in America, a cen- tury later, it was resolved into a representative de- mocracy. The change implied a far-reaching reorganization. The concept of sovereignty was shifted to new ground. The common law was in- applicable to the new order. Written constitu- tions and statutes were necessary to give legality to the new concept. Had there been no change in the idea of sovereignty, there would have been no written constitutions in America. The bills of rights settled the question of sovereignty. The will of a majority of the electors became the Amer- ican sovereign. The written constitution was de- vised to secure the new dynasty and prevent an interregnum. Primarily the purpose was to pre- serve the authority of the majority, and constitu- tions prescribed the conditions for belonging to the new sovereignty by defining the electorate ; they also regulated the general conduct of the 44 M^hen All Were for the State sovereign by defining the basis of representation and the function of the executive and the judi- ciary. The change from monarchy to democracy in- volved the adoption of legal fictions as dynastic facts. It compelled the adoption of what was familiarly called, in the eighteenth century, the system of checks and balances. The government — the state — must be secured against the folly, the designs, the passions of those who compose it. As was said — the people must be protected against themselves. The twenty-six constitutions of the eighteenth century were made, therefore, to be in- dependent of political parties. They should be administrable with advantage to the state what- ever party might be in power. This accounts for the silence as to parties in all the eighteenth-cen- tury conventions. We know little of what was done and less of what was said in the State con- ventions of that time. The debates in the federal convention, as they have come down to us, con- tain scarcely a reference to political parties. But there is abundant evidence that all the conven- tions sought to conserve government by an elab- orate system of checks and balances in a written constitution. John Adams, in his exhaustive dis- cussion of the American constitutions, makes the device of checks and balances the chief merit of the American system of government. Hamilton, Madison, and Jay, in The Federalist, exalt the de- vice as the guarantee of republican government. The same idea is elaborated later by Marshall, 45 ConstHiitioiial History of the American People Webster, and Calhoun. After 1850 less is heard of checks and balances in our government, and in our day the phrase is not in use among the peo- ple and has dropped out of the vocabulary of politics. The men who made the first constitu- tions emphasized the device because they vi^ere compelled to adopt a substitute for administrative experience. The new constitutions were at best only experiments. None of them worked wholly as was anticipated. It is only necessary to cite in illustration the electoral college and the origi- nal, unlimited grant of power to the State Legisla- tures. But even the exception proved the rule, and the constitutions proved on the whole adminis- trable and satisfactory. The State has been con- served, and the purposes for wiiich the constitu- tions were framed — typically set forth in the preamble to the national Constitution — have been fairly well realized. Statesmen of the eighteenth century would impute this to the efficacy of the system of checks and balances. By this they meant the distinct functions of the executive, the legislative, and the judiciary; the different ways in which they are chosen ; the different times when they hand over their power to their successors ; the peculiar combination of the legislative and the executive in the administration of government, and the ultimate responsibility of all public servants to the electors. This correlation of parts and functions is the peculiarity of the American S3^stem. Though arbitrary and ever subject to modification at the 46 Present Concepts of American Institntions will of the people, the system has been tried with success, has never departed from the principles on which it was founded, and has strengthened the conservatism which ever underlies American poli- tics. One commenting on government in America to-day would not be likely to call attention to, much less to emphasize, the system of checks and balances. He would attribute the virtue of our institutions to economic and sociological causes. He would dwell on the people, not on the system. He would analyze political parties, public opinion, and our social institutions. He would not be likely even to use the term checks and balances. In the eighteenth century government was con- ceived as a device ; in our times it is thought of rather as an organism. It is the content, not the language, of the Constitution that has changed. The supreme law, as time goes on, is given more and more an economic interpretation. If adapted to the wants of the country, such interpretation becomes a party doctrine, and if adopted by the majority, it becomes an administrative measure. If it is believed to involve essential rights, it may become a part of a revised constitution. Thus, at last, the constitutions become the depository of settled politics and the register of the growth of the State. The basis for legal defence of the Revolution was the claim by the Americans that King George had violated the compact to which he and the col- onies were parties. It was first broached in 1774 47 Const it 111 ional History of the American Pcopie in the Suffolk Convention,* and was quickly rec- ognized by Adams and Otis as the place of be- crinninor in estabHshins: lei^al boundaries for the Revolution. It in great measure explains why American constitutions began with this definition of the state as a social compact. Coupled with the doctrine of natural rights, the social-compact the- ory proved administrable. On these two ideas government in America, both State and national, rests. When the transition from colony to com- monwealth was effected, two years later, and the first constitutions were made, these two ideas be- came the nucleus of government. In this way the Americans succeeded, at least to their own satisfaction, in putting the King in the wrong. They declared that he had violated the compact, and therefore all political connection with Great Britain was dissolved. The colonies claimed that, thus left in a state of nature, they were free to organize governments to suit themselves. If not sovereign, they were free and independent. New Jersey, the first to adopt a constitution, and South Carolina, made provision that if Great Britain adjusted colonial differences, their constitutions should be of no effect.! With these two excep- tions, the colonies entered upon the organization of State governments. The permanent features * Journals, Provincial Congress, Massachusetts, p. 6oi ; and, specially, of the Hampshire Convention, p. 619. For definition of the "social compact" see Constitutions, Massachusetts, 1780; Maryland, 1776; Kentucky, 1792, 1799. t New Jersey, South Carolina, New Hampshire, 1776; all con- ditional constitutions. 48 All Authority Emanates from the People of these constitutions were their declarations of rights and the threefold division of government. In the aggregate, the declarations comprise about one hundred provisions, all of which are not found in any one constitution. The typical dec- laration is that of Virginia of 1776, which, by repeated adoption, has long since become com- mon, civil property.* It consists of sixteen ar- ticles, all of which rest for authority on the doc- trine of natural rights proclaimed in the opening clause. Men cannot be deprived of their rights, nor can they deprive their posterity of them; all power is vested in the people, and is derived from them. Consequently, their representatives are their trustees and servants, and at all times amenable to them. As government is instituted for the common benefit, it must be organized in the form that is best "capable of producing the greatest degree of happiness and safety, and is most effectually secured against the dangers of maladministration." It follows that, if the form of the government does not subserve this end, the " majority of the community have an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it in such manner as shall be judged most conducive to the public weal." No man can be conceived to be "entitled to exclusive or sepa- rate emoluments or privileges from the community * See Grigsby's Virginia Convention, 1776; Richmond, 1855; also Joint Resolution of Virginia Legislature accepting manu- script of this Declaration of Rights in Mason's handwriting, and depositing it in State archives, February 15, 1844. I.— D 49 Constitutional History of the American People but in consideration of public service." The same doctrine also compels the conclusion that official emoluments and privileges are not descendible, and that the office of magistrate, legislator, or judge cannot be hereditary. The doctrine of natural rights applied in ad- ministration compels the separation of legislative, executive, and judicial pov/ers. Elections must be frequent that the sovereign people may the more perfectly express their will in the choice of public servants. There must be rotation in office. In order to secure equity in the administration of the government, elections must be free and the elec- torate accurately defined ; but the Virginia decla- ration went no further than to include in it all men having sufficient evidence of permanent, com- mon interest with the community, and attachment to it: by which was meant a property qualification. These are entitled to the right of suffrage. No man can be taxed or deprived of his property for public uses without his own consent or that of his chosen representatives. The doctrine of the right of revolution was carried further than to-day — that none are " bound by any law to which they have not in like manner assented for the public good." A relic of the revolt from executive tyranny in colonial times was preserved in the clause that all power of suspending laws or their execution by any authority without the consent of the repre- sentatives of the people, is injurious to popular rights. Yet it is somewhat difficult to conceive how any authority in a democracy founded on 50 The Struggle for Trial by Jury the doctrine of natural rights could thus injure the rights of the people, for by this doctrine the executive, the legislative, and the judiciary are of equal rank. The long struggle for the right of trial by jury culminated in the insertion in each of the constitutions of a provision for the trial according to the law of the land of a person ac- cused of capital or criminal offence, giving him the right to demand the cause and nature of his accu- sation, and to be confronted by his accusers and their witnesses, empowering him to call for evi- dence in his own favor, and entitlinor him to a speedy trial by a competent jury of the vicinage. No eighteenth - century constitutions permitted any other than the unanimous verdict of a jury of twelve men — a requirement from which later con- stitutions have freely departed. Among the complaints of the American people formally set forth by Jefferson in the Declaration of Independence, is that of unwarrantable searches and seizures made by British officers. So palpable a violation of feelings and rights was the imme- diate origin of clauses in the bills of rights de- claring such searches and seizures under general warrant unconstitutional. It would be expected that a people who based their political fabric upon the doctrine of natural rights, and who were accustomed freely to express their individual opinions on all subjects, would de- clare freedom of the press to be one of the bul- warks of liberty and a constitutional right. Among complaints of long standing in Amer- 51 Constitutional History of the American People ica at the time of the Declaration of Indepen- dence were the treatment of the colonial militia by the British government, and particularly the discrimination in favor of royal troops. For more than a century the Americans had claimed that by their charters they were empowered to protect themselves — an idea out of which evolved the political doctrine set forth in the declarations of rights, that the natural and safe defence of a free state is its militia, composed of the body of its people trained to arms. The doctrine is the application to the state of the in- dividual's right of self-defence. The old contro- versy between King and colonists over the relative rank of the civil and the military power was for- ever settled by the common provision that the mili- tary should always be under strict subordination to the civil power. Lest the doctrine of natural rights should be made to prove too much and be- come the authority for anarchy, the Virginia bill declared that the people had " a right to uniform government ; and therefore that no government independent of the government of Virginia ought to be erected or established within the limits " of the State — a provision found in no other consti- tution. This doctrine, which is essentially that of the centralization of civil authority, stands in strong contrast with the later doctrine of secession. Common to all the constitutions was a statement of the necessity of " a frequent recurrence to fun- damental principles "; which may be interpreted to mean practically a campaign of political edu- 52 Christian Doctrine in the Constitntions cation. There is a touch of Franklin's philosophy in the provision that these principles can be pre- served only " by a firm adherence to justice, mod- eration, temperance, frugality, and virtue." Prob- ably that spirit which moved the authors of the association of 1774 to advise their countrymen to discountenance and discourage extravagance and dissipation caused the several conventions to include this provision in their declarations of rights. Religion was defined as " the duty which we owe to our Creator; and the manner of discharg- ing it can be directed only by reason and convic- tion, not by force or violence " — a broad applica- tion of the doctrine of natural rights, whence it was concluded that all men were equally entitled to the free exercise of religion according to the dictates of their conscience. All the constitu- tions were made under the influence of the Chris- tian religion. In Massachusetts, Church and State were in a degree united and religious or- ganizations of a lawful character were entitled to support from taxation.* In New Hampshire, public " Protestant teachers of piety, religion, and morality " were to be supported by the several towns, parishes, bodies corporate, or religious so- cieties within the State, according to law ; but the union of Church and State was feeble. Maryland protected in their religious liberty all persons who * The Episcopal was made the State Church in South Carolina by its first constitution, 1776. 53 Cousfiiufioual History of the American People professed the Christian religion, and the Legisla- ture at its discretion could lay a general and equal tax for its support. Soon, however, the demand for religious toleration transformed the common- wealths into secular bodies. Religion was con- sidered a deterrent of crime — an idea that ac- counts for the brief union of Church and State in some commonwealths. In order to secure the equal rights of its inhabitants in the administration of justice, the Maryland amendment of 1795 em- powered members of the Society of Friends and others who were " conscientiously scrupulous of taking an oath," but were otherwise "qualified to vote or to be voted for," to substitute af^rmation for the oath ; and three years later the constitu- tion was again amended so that the affirmation of persons was considered " of the same avail as an oath to all intents and purposes," thus permit- tinor them to be witnesses in court. Vermont alone of the commonwealths applied the doctrine of natural rights to all men irrespec- tive of race or color, providing that no male per- son born in America, or brought from over sea, could lawfully be held to serve any person " as a servant, slave, or apprentice" after he arrived at the age of twenty-one years ; nor a female, in like manner, after she arrived at the age of eighteen; unless such persons were bound by their own con- sent after arriving at age or were bound by law for the payment of some obligation.* This clause * Vermont, 1777, 1786, 1793. 54 Virginia and the State Constitutions may well be called epoch-making, for it was the first antislavery provision in an American consti- tution, the precedent for a similar clause in the constitutions of Ohio* and Illinois,! and, in mod- ified form, in two constitutions of New York.^ In their bills of rights the commonwealths from the first illustrated the two sets of ideas which have divided the country. The Virginia bill was not common to the Northern States, the Massa- chusetts bill was not common to the Southern, and the difference was intensified as new constitutions were adopted. The New England provisions be- came the precedent for later constitutions of Nor- thern States and followed the movement of popu- lation westward to the Pacific. The Virginia bill became the precedent for States to the south and west, and, with modifications and additions, is now in force there. Only three States claimed to be sovereign, and these were in New England, § but the doctrine of residuary State sovereignty pre- vailed. This unphilosophical notion was ad- vanced in the federal convention, was made a po- litical doctrine in The Federalist, and was adopted for a time by the Supreme Court of the United States. The idea was not disposed of till i868.|| A working principle of representative govern- ment was embodied in the claim of the State to a * 1802. 1 1819. X 1821, 1846. § Connecticut, 1776, Act of Assembly; Massachusetts, 1780; New Hampshire, 1784. The Connecticut provisions do not occur in the constitution of 1818. The Massachusetts remains; it was evidently taken from Art. ii., Articles of Confederation. II In Texas vs. White. 55 Coustitiitioiial History of the American People portion of the labor, and, if need be, of the services of the individual — the first general formulation of the popular idea of a tax. The right of the citizen to the due course of law — a phrase traceable to the Great Charter — was commonly set forth with the addition of his right to a verification of the facts in the vicinage in which the act was com- mitted. Four States made it unconstitutional to try a man twice for the same offence.* Three construed the right of petition as empowering the people to instruct their representatives.! As incident to the right of the people to an untram- melled expression of opinion through their repre- sentatives, these were given privileges and im- munities not enjoyed by other citizens. When we reflect on the superfluous legislation of our own times, a provision for frequent sessions of the Legislature strikes us, at first, as evidence of inex- perience in government. It is evidence of the persistence of colonial habits. During the colonial period the annual session of the Assembly was the only check which the people had on the executive. The idea was per- petuated in the Constitution of the United States. One commonwealth now retains its annual Legis- lature, and it is the only one that has continued its eighteenth-century constitution.:]: It is doubt- * New Hampshire, 1784; Pennsylvania, 1790; Delaware, 1792; Tennessee, 1796. t Vermont, 1777, 1786, 1793. North Carolina, 1776. Pennsyl- vania, 1776, 1790. X Many features of the first constitutions of New Hampshire, 56 Guarding the Independence of the Judiciary ful whether a convention called at the present time to make a national Constitution would provide for annual sessions of Congress. The principle which in large measure has regu- lated the business transactions of the people was embodied in the provision forbidding the enact- ment of ex post facio laws, or laws impairing the obligation of contracts. Four States thus estab- lished a precedent for the national Constitution.* The States guarded carefully against the confusion of functions, and protected the citizen against the usurpation of the judicial by the executive or the legislative. Two complaints, long heard during colonial times, were ended by the provision against forcibly quartering troops on citizens in time of peace, and by that recognizing the civil author- ity as paramount in the state. No bill of rights was arranged in strictly philosophical order nor was free from irrelevant matter, as illustrated in the bills of rights of three States, which de- clare that an independent judiciary is essential to the stability of the commonwealth.! The silence of the others on this point merely signifies that they sought to secure an independent judiciary Vermont, Delaware, North Carolina, Kentucky, Tennessee, Penn- sylvania, and New York, remain in the present constitutions of these States. Massachusetts has amended hers thirty- three times. New York, New Jersey, and Delaware still have annual sessions. * Maryland, North Carolina, 1776; Massachusetts, 1780; New Hampshire, 1784. t Maryland, 1776; Massachusetts, 1780: New Hampshire 1784, 1792. 57 Constitutional History of tlv Afnerican People through legislation. The comparatively slight intimation of the importance of an independent judiciary contained in the first State constitutions hardly prepares us for the elaborate application of the idea in the Constitution of the United States and its defence in The Federalist. The defects of colonial government were inti- mated in the provision forbidding judges to hold other offices during their terms of service, or to receive fees in addition to their salaries ; and for the first time judges were subject to removal by the Governor on recommendation of two-thirds of each House.* An administrative measure of this kind would scarcely be sought among the clauses of a bill of rights. It illustrates what is not rare in constitutions, how a provision transferred to the bill of rights from its normal place in the article on the legislative, executive, or judiciary, in order to emphasize its importance and to se- cure it from amendment, is placed in the most permanent part of the instrument. The influence of Blackstone may be detected in the language of two constitutions, which, in apply- ing the theory of compact, declared that men sur- render some of their natural rights when they enter society.! The clauses on freedom of wor- ship recognized the rights of conscience, and pub- lic opinion was sufficiently sensitive to the rights of those who had scruples against bearing arms — * Maryland, 1776. •f New Hampshire, 1784, 1792. 58 Indefinite Characteristics of Late Constitutions and these were chiefly of the Society of Friends — to allow them to substitute a money equivalent. A provision destined to be claimed later in support of State sovereignty was adopted by two Northern and two Southern States, reserving to them the exclusive resfulation of their internal police.* The constitutions adopted since 1870 have been criticised as partaking too much of the character of a code. Some of the first are open to the same criticism.! It is a wise convention that knows the difference between a constitution and a code. The last quarter of the eighteenth century was an era of transition and reforms, some of which are pushed forward in these early or- ganic laws. The common-law maxim, "The great- er the truth the greater the libel," was changed, and the jury with the evidence before it should determine both the facts and the law. Another reform changed the principle long made familiar by the saying, " Once an Englishman, always an Englishman." Henceforth the right of emigration, and, as a consequence, in later times the right of expatriation, should be accounted natural and in- herent. \ * Pennsylvania, Maryland, and North Carolina, 1776; Ver- mont, 1777, 1786, 1793. t Maryland, 1776; Vermont, 1777, 1786. Probably due to the fact that these constitutions were made by the Legislatures acting as conventions. }; States having boundary disputes, Vermont, 1777, 1786, 1793; Pennsylvania, 1776, 1790; Kentucky, 1792, 1799. CHAPTER III THE FIRST ORGANIZATION OF GOVERNMENT IN THE STATES Though freedom in religion was a characteristic reform of the times, the freedom was relative : i^reat if one looked backward, slight if he looked forward. There was still a predominant disposi- tion to disqualify the non- religious part of the community from voting and from office. By the non-religious was meant all who did not formally and publicly accept a prescribed creed or a theo- logical system. This disqualification was the first to disappear in the struggle for the extension of the franchise which began about 1795 with the Democratic party. But the religious disqualifica- tions were less rigorous than during colonial days. Suffrage extension was a reform destined to agi- tate the public mind down to our own time. Another was a step towards the abolition of im- prisonment for debt;* another, that the estates of suicides, traitors, and persons killed by acci- dent should not be forfeited to the common- wealth, but descend to the heirs in the usual * Pennsylvania, 1790; traceable to Penn's Frame of Govern- ment, April 25, 1682 ; to the Laws Agreed Upon in England, May 5, 1682 ; to Charter of Privileges, 1701. 60 Social Distinctions in tJje Early Colonies manner:* a clear abolition of the common -law provision. It was to be expected that the new democracy would provide against hereditary emoluments and distinctions and titles of nobility, and that a pre- cedent would be established making: it unconsti- tutional for a citizen to accept a gift from a foreign power without the consent of the State. What a democracy would not accept it could not well grant itself, and the state was made incapable of bestowing titles. It is now quite forgotten that social distinctions were sharper then than now. Jefferson and his party made political capital out of the aristocratic ways of the Federalists, and the wave that later swept Jackson into the Presidency engulfed for two generations at least the preten- sions of the class described by John Adams as " the well born." Missouri and Arkansas were commonwealths before the levelling spirits were quieted. The crest of the anti-nobility wave was always along the frontier, Jefferson affected neg- ligence, and made political capital out of dishev- elled dress. Political campaigns are still con- ducted on home-spun tactics. The one great tri- umph of the Whig party was won when it aban- doned federal traditions, identified itself with the people, and had monster meetings and ox-roasts. Though the States guarded the obligations of contracts entered into by citizens, only twof de- * Pennsylvania, 1790; Delaware, 1792; Kentucky, 1792, 1799. t Delaware, 1792 ; Tennessee. 1796, limited the right to its own citizens. 61 Constitutional History of t/je American People clared themselves suable at law, and one of these limited to its own citizens the right to bring the suit. The first, Delaware, adopted the provision two years before the great case* was decided that led to the eleventh amendment; the second, Ten- nessee, two years after. Though all the constitu- tions provided executive terms, only one pre- scribed a geographical rotation in the executive office. The Governors of Maryland for three quar- ters of a century came alternately from the eastern and the western shore. This commonwealth was the first to proscribe monopolies, in language now familiar to the States of the new Northwest. The proscription of 1776 began the industrial cam- paign that is still going on. Colonial experience and the political philosophy of the day combined to declare the provisions in the bills of rights inviolable, or, as the phrase went, " beyond constitutional sanction." Each conven- tion sought to perpetuate its work. Yet the six- teen States that comprised the Union in 1800 had adopted twenty -six constitutions in twenty -four years. This activity was engendered by the in- completeness of those made amid the stress of war. It is somewhat paradoxical that constitu- tions, like governments, change most in times of peace. From these first declarations the com- monwealths have departed but little. This was inevitable. The doctrine of natural rights, of the social compact, and of popular sovereignty could * Chesholm vs. Georgia, 2 Dallas, 419. 62 Natural Rights of the Early Settlers not be abandoned. The chief source of the declara- tions was the experience of Englishmen in Eng- land and America. There is no close relation be- tween the colonial charters and these constitutions. What Americans read into them and out of them was now for the first time formulated in the foun- dation of the State. One phrase found in several of the later charters was elaborated into a new prin- ciple. Colonists who, by royal charter, were said to have all the liberties and immunities of free and natural subjects of Great Britain, could, without great intellectual effort, at least in the eighteenth century, when accusing the King of violating the social compact and leaving them " in a state of nature," claim that their rights were natural. This may be said to be the fundamental doctrine of de- mocracy in America.* All the provisions in the American bills of rights, then and now, were once administrative measures. They are past politics gone to seed, the mature experience of men in social relations. If government were not a mat- ter of administration, there would be no bills of rights. These need not necessarily be written. They may be secured in the customs or tradi- tions of a people. From their nature they tend to lengthen. Perhaps the best illustration of the manner of their coming is afforded by the amend- ments to the national Constitution, which are the * It was stated for the first time in a constitution by New Jer- sey — Constitution 1776, Clause i. As there given, it states the whole case of the American Revolution — the transition from mon- archy to democracy. 67, Constitutional History of the American People national bill of rights. The first ten were common to the first State constitutions; the remaining five were added to make secure administrative measures accepted as final at the time of their adoption. In later years the Declaration of Independence and the bills of rights were often called " glitter- ing generalities."* As a people, we have become more or less familiar with the privileges and im- munities which they were intended to protect, and therefore the provisions themselves seem super- fluous. We cannot conceive of a republican form of government without them. The States were making the first attempt in history to define civil functions by means of a written constitution. The- oretically, the division was complete ; practically, incomplete, and the incompleteness was admitted. The cause of the difificulty is the impossibility of fixing the administrativ^e relations of the three, so called, powers — the executive, legislative, and judi- ciary. Baffled by the problem for three centuries, democracy in recent years has attempted to solve it by organizing the administrative as a fourth power. This attempt at solution explains why the later constitutions resemble a code. The normal oroanization of the Les^islature was in two branches, which prevailed, except in three States for a short time.t The division was not an inheritance from England, except as to form. * Rufus Choate gave the phrase currency. See an article on the Declaration, by Moses Coit Tyler, in the North American Review for July, 1896. t Pennsj'lvania. Vermont, Georgia. 64 English and American Legislative Systems Functionally the two Houses in America differ widely from the English, as was thoroughly un- derstood in the eighteenth century. The life-ten- ure, the membership by inheritance, the landed interests of the House of Lords have no place in the American Senate. The functions which the English system secures we secure by a con- ventional arrangement of elections, terms, tenure of office, and prescribed powers. In similar man- ner we established a Lower House \\\\h functions analogous to those of the Commons. Not much importance is to be attached to variation in legis- lative titles.* The terms Senate and House were sufficiently common to give title to the branches of the national Legislature, and since 1787 titles have been uniform. The Houses together were uniformly styled the General Assembly. Annual elections of the House prevailed and continued till their expense and the superfluous legislation they engendered compelled their abandonment. The change extends over the nineteenth century. Only one State — Massachusetts — continues the old practice. Representation in the House was vari- ously apportioned. The basis was property, civil corporations, taxable inhabitants, electors, popu- lation, or some combination of these elements. In all States the basis was the white race. The "federal number," as the provision for representa- * House of Representatives in Pennsylvania, Delaware (1792), Georgia, Kentucky, Tennessee, New England ; Assembly in New Jersey, New York, Delaware (1776); House of Commons, North Carolina (1776). I.— E 65 Cousiitiitioual History of the American People tion of three - fifths of the slaves was called, was adopted in only one State,* though proposed in several in later years. In States having cities containing a large pro- portion of the population, a struggle early began between rural and urban interests! which has con- tinued to the present and has affected their suc- cessive constitutions. In every instance the rural interest has triumphed and the city has been de- nied the proportion of representation to which its population has entitled it. The custom early be- gan of fixing the minimum and maximum number of both House and Senate. Changes in popula- tion were usually provided for by a sliding scale of representation based on a census. As in later times, the practical definition of a district proved a difficult problem. Its solution could be at best only approximate and temporary. In some States towns were older than counties ;| in others coun- ties were older than towns.§ The representative district as we know it was not yet worked out. The unit of measure was various — the town, or the parish, or the county. Gradually the pre- dominating basis of local government became the basis of representation — the town or township in the North, the county in the South. Usually the apportionment was loosely fixed in the first con- stitution of a State. Later apportionments were left to the Legislature. There was sure to remain * Georgia, 1798. t Massachusetts, New York, Pennsylvania, Maryland, Virginia. X Massachusetts, Virginia. § The newer States. 66 Conservatism of Early Democracy a fractional population in the districts which, in the aggregate, constituted more than the ratio of representation. It was early attempted to recog- nize this remainder.* Neither then nor since has the attempt given satisfaction, though successive conventions have wrestled with the problem. The demand for equitable representation has been one of the chief causes of new constitutions. As no official census enabled the first conventions to ap- portion representation equitably, their work was speedily revised. This accounts for the number of constitutions before 1800. Population during the eighteenth century was relatively stationary. A native migration soon began, the effect of which quickly transformed great portions of the North- west and of the Southwest into States. Their ad- mission was contemporaneous with the arrival of the advance guard of European immigrants, who, to the number of nearly seventeen millions, have contributed to make the problem of apportion- ment one of the most difficult which the common- wealths have had to solve. Though the fundamental notion of eighteenth- century democracy was equal rights, the constitu- tions carefully discriminated who among the pop- ulation were qualified to vote and to hold office. The voters were a small fraction of the people ; and those qualified for office a small fraction of the voters. The Representative was required to be of a certain age, to have resided in the State or * Kentucky, 1799. 67 Constitutional History of the American People district a certain time, to possess a certain amount of property, principally in land ; to profess a cer- tain religious creed, and to be native-born, or a citizen at the time when the constitution was adopted. Only white men were eligible to office. As the qualifications were carefully detailed in the constitution, they must be interpreted as express- ing public opinion. In few instances were they left to the discretion of the Legislature. They show what were considered the guarantees of pub- lic safety. Men possessing them were accounted as having " a permanent, common interest with the community." The following Table specifies the qualifications required from candidates in some of the States, according to their constitutions : The Qualifications of Representatives Prescribed by the State Constitutions, 1776-1800. State Const. Age Residence Propbrtv Religion Term, Limitations N.H. 1776* 1784 1792 (21) (21) (21) For two yrs. inhabitant of town, parish, r place chos- en to rep- resent. Estate of £100, one- half to be freehold in that town. Protestant. Annual election. * In New Hampshire a Representative was a fieeholder. .See Acts and Laws, New Hampshire, Portsmouth, 1771, p. 3. In Rhode Island he was an elector (see Table of Qualifications). The oath of an Assemblyman in Connecticut was : " You, A. B., do swear by the name of the ever-living God that you will be true and faithful to the State of Con- necticut, as a free and independent State, and in all things do your duty as a good and faithful subject of the said State, in supporting the rights and privileges of the same." (Assembly, second Thursday of October, 1777.) The Representative was qualified as an elector. For the oath required in 1776, see Acts of 1776, p. 451. New York was districted, March 4, 1796, into four " great districts "—Southern, Middle, Eastern, and Western, following the grand division of that for Presidential Elec- tors, April 12, 1792 (repealed November 19, 1792). See Constitution, 1777. In New Jersey, Assemblymen, members of Legislative Council, sheriffs, and coroners 68 IVhat the Candidates Should Possess The Qualifications of Representatives Prescribed by the State Constitutions, 1776-1800. — Continued. State. Const. Age Vt. 1777 1786 1793 21 Mass. 1780 (21) N.Y. N.J. 1777 1776 (21) (21) Pa. 1776 (21) Residence I yr. in State, 2 years in State, I yr. of which (the last) in the town he represents. I yr. in town he repre- sents. I yr. inhabi- tantof coun- ty he repre- sents. 2 yrs. in city or county he repre- sents. Property Freehold of ;^IOO town he represents, or ratable estate of ;i{^20ointhat town. ;[f500 real and person- al estate in thatcounty. Taxpayer. Religion Belief in one God ; in spiration of the Scrip tures ; pro- f e ss the Protestant religion. Christian re- ligion. No Protes- tant denied the right of candidacy on account of religious opinions. Religionasin Vermont. Term, Limitations Annual election. Annual election. Not oftener than 4 years in 7. were nominated by nomination tickets, made by the electors, sent to the town clerks. From this list, published by the clerks, the electors chose on the second Tuesday of Octo- ber. Act of February 22, 1797. Pennsylvania was districted (apportionment of Representatives) September 4, 1779. In Virginia, by one of tlie ordinances, passed July, 1775^ the Senator was included among the officers of the State to be qualified as a freeholder. In South Carolina, by act of Assembly, April 7, 1759, a member was required to be a Protestant, to have resided one year in the province, to possess five hundred acres of land and twenty slaves, or ;{^iooo clear in realty- In States whose constitutions did not specify the age of the Representative, custom or law fixed it at twenty-one years. In the table these are distinguished by placing the num- ber in parentheses, thus (21). 69 Consiitiitional History of the American People The Qualifications of Representatives Prescribed by the State Constitutions, i 776-1 800. — Continued. State Const. Acs Pa. 1790 21 < Del. 1776 (21) " 1792 24 Md. 1776 above 21 Va. 1776 (21) N.C. 1776 (21) S. C. 1776 (21) " 1778 (21) 1790 21 Rbsioencb Property Religion Tbrm,Li.mitations Citizen and inhabitant of the .State 3 yrs. ; the last year of it in city or county he represents. Residence in county rep- resented. Citizen and inhabitant of the State 3 yrs.; the last year in county. I year ir county rep resented. Reside in county. I year ir county. 3 yrs. in State Taxpayer. Freehold. Freehold in county. ;{;500 real and person- al property, above. Freeholders in same. 100 acres for life or in fee (possessor thereof for 6 mos. before election) in the county represented ;^3500 (cur rency) in real estate. 500 acres, freehold and 10 ne- groes, or of 2^1 50 clear. 70 The qualifi cation is in the nega tive: no per son who ac- knowledges the being of a God and a future state of rewards and punish inents to be disqualified Belief in the Trinity and in the inspi ration of the Scriptures. Christian re ligion. Protestant. Protestant. Annual election. Chosen bien- nially. Free white man. Legislative Procedure Borrowed from England The Qualifications of Representatives Prescribed by the State Constitutions, 1776-1800. — Concluded. State Const. 1777 17S9 1798 1792 1799 1796 Age Residence Property Religion Tbrm.Limitations Ga. 21 21 21 24 24 21 12 mos. in State, 3 months in county. 7 yrs. citizen of U. S. ; 2 yrs. inhabi- tant of the State, and an inhabi- tant of the county rep- resented. The same as in 1789. 2 yrs. citizen of the State; last 6 mos. of county. Citizen of U. 250 acres of land or ;^250. 200 acres land or $150. 250 acres, or taxable property worth ;^500 in the coun- ty. Protestant. Annual election. Chosen on the Ky. federal basis — " three-fifths " clause. Chosen ann'lly. Tenn. S. , 2 yrs. in State ; last year in the town or county rep- resented. 3yrs.inState; I year in county. 200 acres, Biennial. freehold. Centuries of practice in legislation had worked out a procedure in the British Parliament, and the substance of it was embodied in these constitu- tions. The provisions regulated the quorum, the election of members, their official conduct, their privileges, and the power of the House or Senate over them. This portion of our supreme law well illustrates the origin of constitutional provisions. 71 Const it lit ional History of tijc American People From the State constitutions the federal conven- tion made up the analogous part of the national Constitution, They were construed as checks and balances in legislation. If the test of sovereignty, at this time, be the oath of allegiance, the States were sovereign, as Representatives and other State officials did not swear allegiance to the United States, but to their own commonwealth. The requirement intimates how slight men considered their obligation to the national government. The national idea which now prevails was then unheard of. Speeches without number have been made, and books with- out number written, to prove that the national gov- ernment, paramount and sovereign, began on the 4th of March, 1789. Since the civil war, almost unconsciously, national sovereignty, as now under- stood, has been freely imputed to the United States in the eighteenth century. Two things must be remembered. The Constitution was ratified with the understanding that a residuary sovereignty was left in the States ; the present idea of national sovereignty was evolved by more than a century of administration. In other words, we have learned by experience that it is impossible to administer a general government that is not sovereign. Necessity made the Con- stitution originally, and necessity has worked out the idea of national sovereignty. Too often ideas are imputed to " the fathers " which it was im- possible for them to hold. If the federal gov- ernment had been commonly recognized in the 72 state and National Sovereignty eighteenth century as sovereign, the oath of al- legiance would not have been limited to the State. With one exception, the State constitutions now in force accord with public opinion on national sovereignty. The excepting constitution — that of Massachusetts of 1780 — is in this particular a solitary survival of the eighteenth century, and it practically conforms by statute with the other forty -four. The growth of the idea of national sovereignty kept pace with the degree to which the general government identified itself with the interests of the people. At first the States did the more for them. As soon as the States began to fall behind, the idea of national sovereignty de- veloped. The State constitutions kept pace with the idea, and gradually prescribed allegiance to both governments. Education at public expense, which now consti- tutes an element so essential to the general wel- fare, was quite unthought of in the eighteenth cen- tury.* The need of schools was felt, and was met in part. The silence on the subject, at the time, should not be construed as evidence of wilful neglect of learning. The States were poor and deeply in debt. Individualism ruled the hour, and * Massachusetts Constitution, 1780. Pennsylvania, 1790— the provision was put in to protect the then newly established Col- lege of Philadelphia ; Art. vii., Sec. 3, was inserted to protect the old college, whose charter had been attacked by the Legis- lature. See Stone's edition of Wood's History of the University; third edition, Philadelphia, 1896. Five States made the support of schools obligatory on the Legislature — Pennsylvania, Ver- mont, New Hampshire, Massachusetts; Georgia, 1798. 73 Coiistitiitioual Histoiy of fbe American People it was not thought to be a function of the State to do for a citizen what he ous^ht to do for himself. We defend public education as the fathers de- fended property and religious qualifications — as a deterrent of crime. A slight change in the phrase, " Education, the cheap defence of the nation," puts us in touch with eighteenth-century thought. John Adams was the father of the public school, the State university, the State college, and the normal school. He realized when he inserted the educational clauses in the constitution of Massa- chusetts that he was departing from precedent and feared lest all would be struck out* Save in New England, the idea lay dormant until the national government began to make donations of public lands exclusively for school purposes. The State constitutions then introduced an administrative article on education. This act of the general gov- ernment strengthened the national idea. In our day, the right to education, in popular estimation, ranks as a civil right. Temporary features are found in all constitu- tions ; those in the first refer chiefly to pending questions of boundary — settled later by surveys, although nearly every commonwealth is still vexed by some boundary dispute. Traces of abuses in legislation that still survive are found, such as filibusterinof and the g^rantino^ of ofratuities. Lesfis- latures acted under a free, general grant of powers. The exceptions scarcely suggest the later almost * L/fe and Works of John Adams, Vol. i., p. 24. 74 Powers of State Legislatures tropical growth of provisions against special legis- lation. The first limitation of this kind was a rather feeble attempt to regulate divorces.* In- compatible offices were defined ; clergymen were disqualified from civil office, not so much to sepa- rate Church and State as to improve the profes- sion.! The compensation of members was a per diem allowance, regulated in some States by the constitution, in others by the Legislature. A member was disqualified by receiving fees or by loss of property. The House possessed the ex- clusive right to originate money bills. Tennessee % inaugurated the change which after 1800 was grad- ually to overspread the country, that the bill may originate in either House. Departure from English precedent was inevita- ble, as the Senate, being an elective body like the House, was responsible to the same constituency: a condition that never prevailed in England. It was a case of cessat ratio, cessat lex. The change begun in 1796 intimated that others might be ex- pected, bringing the Legislature into the condition — practically set by the later constitutions — of one body differing only by tradition from the other. The House was the chief heritage from colonial times. It was the assembly to which for a cen. tury and a half the people had turned for protec- tion and relief. It preserved many colonial tradi- * Georgia, 1798. t New York, 1777; North Carolina, 1776; South Carolina, Georgia, Kentucky, 1799; Tennessee, 1796. \ Tennessee, 1796. 75 Constitutional Histoiy of the American People tions and practices, of which the distinguishing one was its exclusive powers of taxation. The Senate was a product of the times, springing into existence when colonies became commonwealths. Its origin is suggested by the name it bore in several States — the Legislative Council.* This oriiiinal must not be confused with the Executive Council which for a time also existed in most of the States and survives in three. t The Senate sprang from an idea, embodied in the New Eng- land charters, that, in addition to the colonial Assembly, Assistants to the Governor should be chosen. As the theory of checks and balances took possession of the public, the Senate as we now know it was devised as a set-off to the House. It was the most artificial part of the new civil system, and its functions have never been as distinct, in the popular mind, as those of the House. It is not strange that the proposition to dispense with it has been made from time to time. As its functions become identical with those of the House, its existence becomes precarious. It seems to weaken as the administrative strength- ens, but the House has weakened also at the same time. It would seem, previous to experience, that the Senate would be strengthened by being em- * Delaware (1776), called Council of the General Assembly; New Jersey, South Carolina (1776), Legislative Council; New Hamp- shire, The Council ; Connecticut, Rhode Island, The Governor and Assistants. Until 1790 there was no Upper House in Penn- sylvania, nor in Vermont till 1836. t Maine, New Hampshire, Massachusetts. Efforts have been made to abolish it, especially in Massachusetts (i 880-1 895). 76 The Senate a New Device powered to originate money bills. On the con- trary, the idea has strengthened that the dualism is superfluous, and that the junior body should be permanently dissolved. The fate of the State Senate is a problem for the future. The original, advisory functions of the Senate are now performed largely by commissions, ad- ministrative boards, and individuals, who, in the- ory, are experts. All this body of administrative agents was wanting in the first constitutions, ex- cepting a few military, fiscal, and land officers. The Executive Council was an illustration of the popular distrust of Governors. The Crown was not yet forgotten. The Qualifications of Senators as Prescribed by the State Constitutions, i 776-1 800. State Const. Age 30 Residence Property Religion Term Remarks N H 1776 1784 1792 1777 1786* 1793 Inhabitant. 7 years in- hab. State and of dist. at time elected. I yr. I yr. This upper b r a n c h (temporary), was chosen by the low- e r, and called the Council. Vermont Vt Freehold wo r t h ;^200. Protestant had a Council, but no Senate. " * Vermont had no Senate until 1836. 77 Const it III ioiidl Histoiy of the American People The Qualifications of Senators as Prescribed by the State Constitutions, i 776-1 800. — Continued. Statb Const. Acs Residbncb Property Religion Term Remarks Mass. 1780 5 yrs. inhab. of State, inhab. of dist. repre- sented. ;^300 in freehold, or;^6ooin personal estate. I yr. N. Y 1777 1776 Freeholder. 4 yrs. I yr. N.J. I yr. county ;,^i Same as The Upper proclama- Assem- House Mas tion mon- blymen. called the ey, if real Legislative and per- Council. sonal es- tate. Pa. 1776 No Upper House. 1790 25 Citizen of State 4 years ; the last of the dist. repre- sented. Taxpayer. Same as for Rep- resenta- tives. 4 yrs. Del. 1776 25 Reside in county. Freeholder. 3 yrs. Called the Council. 1792 27 Citizen of State 3 years ; the last of the county. 200 acres freehold, or real and personal property worth ;^IOOO. 3 yrs. Md. 1776 25 3 yrs. resi- ;^iooo real As mem- 5 yrs. Chosen by dence in and per- bers of electors. State. sonal. House. Va. 1776 25 Resident in district. Freeholder. I yr. N. C. 1776 I year in county. 300 acres in fee. I yr. S.C. 1776 Chosen by the Assem- b 1 y from its own body, and called the Legislative Council. 1778 1 30 5 years in State. ;,{^20oo set- tled free- hold estate Protestant I yr. 7S Senatorial Qiialifications The Qualifications of Senators as Prescribed by the State Constitutions, 1776-1800. — Concluded. State Const. Age Rbsidencb Property Religion Term Remarks s.c. 1790 30 Ga. Ky. Tenn. 1777 17S9 1793 1792 1799 1796* 28 25 27 35 5 years in State. 9 years in- habitant of U.S., 3 years of State , 6 months, county. Same as in 1789, ex- cept I year in county. 2 years in State. U.S. citizen, 6 years in State, last in district. 3 years in State, of which I yr. in county. ;^300 ster- ling, set- tled free- hold. If a non-res- ident in the d i s- trict, an e state, freehold, of ;^ I coo, cl e a r of debt. 250 acres freehold or proper- ty worth ^250. Freehold wort h $500 or taxab le property worth $1000. 200 acres in free- hold. 4yrs. 3 yrs. I yr. 4 yrs. 4 yrs. 2 yrs. No Upper House. Chosen by electors specially elected. The compensation of members of the two Houses was usually the same ; but the Speaker of the House received more than any other member of it. 1834- In Tennessee the qualifications for Senators and Representatives were the same until 79 Coiistiliitioiidl Histoiy of the Anicrican People and the President of the Senate received the same as the Speaker of the House. Thus, in 1797, the Speaker and the Vice-l'resident of the Coun- cil, in New Jersey, received 20 shillings a day ; the councillors and mem- bers, 17 shillings; in Pennsylvania, 1777, the members received 15 shil- lings, the Speaker, 20 shillings. In 1791, in Pennsylvania, the two pre- siding officers, 22 shillings and 6 pence ; the Senators and Representatives, 15 shillings and 9 pence, mileage. In \'irginia, in 1779, each Assembly, man was paid 50 lbs. of tobacco daily, and 2 lbs. additional as mileage ; by the act of 17S0, the grand jury was required, at each of the four sessions of the general court, to estimate the money value of tobacco as a basis for the wages of members of Assembly. Senatorial apportionment differed from that for the House. It was by groups or masses of popu- lation rather than by single towns or counties.* The-basis was property ; that of the House, though varying, was persons, or persons and property. The district came into existence in the attempt to establish a basis for Senatorial apportionment. To secure all the benefits of the Senatorial device, the retiring clause was worked out by which democ- racy secured a changing body and a permanent one at the same time. The State thus established the precedent for the nation. The Senate was a smaller body than the House, chosen for a longer term, and the qualifications for its members were a little more exacting. The Senator was an older, and in some States a richer, man.t A body as conventional in origin would be expected to illus- trate temporary expedients or schemes of election. Of these, most noticeable was the Electoral College, the prototype, if not the precedent, for the Presi- * Virginia, New Jersey, 1776; Massachusetts. 1780; Georgia, 1789; Pennsylvania, 1790; New Hampshire, 1793. t New Jersey, Maryland, Delaware, North Carolina, 1776; New York, 1777; Massachusetts, 1780. 80 Plutocratic Characteristics of the Senate dential Electors. The States speedily abandoned the College — Maryland, in which it originated, and Kentucky, which took it from Maryland and the Constitution of the United States. The idea early took root that each county should have one Senator. But the theor)' of equal representation compelled a recognition of the more populous counties and increased the difficulties of appor- tionment. Various devices were tried to keep the membership of the Senate in ratio with popula- tion, but none gave full satisfaction. The func- tions of the Senate were in part copied from those of the House of Lords, as that of a court of im- peachment or a court of law, but in part conven- tional, as that of electing the Governor,'^ In some States the House participated in this election.! The first led to confusion of legislative and judi- cial functions ; the second was soon recognized as undemocratic. Gradually, before the century closed, the Senate came to be recognized as rep- resenting the property, the House the persons, in the State. But the idea was at best conven- tional. For this reason democracy set about de- stroying the first basis and strengthening the second, and the functions of the Senate were viewed in a new light. It gradually became a democratic body. The old distinction was for half a century a political issue. But the democratic character of * Georgia, 1789. As a court, New Jersey, New York, Con- necticut, Rhode Island. t In the Southern States usually by joint ballot. In Georgia, 1777, the House alone elected him. I.— F 81 Coiistiiiiiioual History of the American People the Senate was not established until after 1820. Together, House and Senate comprised a working Legislature whose methods of procedure remain essentially as when they were first established. The constitution held the two branches together. As a device, the Senate was almost a discovery in politics. It illustrates how democracy utilized political mechanics in working out a substitute for an ancient branch of the Legislature which hitherto had consisted of a landholding class — law- makers by accident of birth. There was nothing accidental in the substitute. Every quality and function was fixed by the logic of the political situation. It is in this sense only that the State Senate is one of the natural flowers of democracy. Qualifications OF Governors. State Constitutions, 1776-1800.* State Const. Age Residence Property Religion Term Remarks N H 1776 1784 1792 1777 1786 1793 1780 1777 Vt 30 30 7 years in State. ;^500, one- half in freehold. Protes- tant. I yr. Styled the President. .. 4 years in State. 7 years in State. Mass. N.Y. ;i^iooo free- hold. Freeholder Christian. * The Governor of Rhode Island was a freeholder, and elected annually ; so of Connecti- cut. In New York, act of March 27, 1778, the elector voted viva voce for Senators and Assemblymen, but by ballot for Governor and Lieutenant-Governor. In New Jersey the Governor's salary, by act of December 23, 1784, was £s5°\ November 7, 1797, £7S°- November 7, 1798, XJ700; November 11, 1799, $1866.67. In Virginia, his salary, act of May, 1779, was ;C45oo. In Kentucky, act of January 22, 1798, ;{l4oo, also fuel, station- ery, and postage. In Tennessee, October 23, 1796, $750. In all the States, no man other than a freeholder was chosen Governor ; nor any man who had not long been a resident of the State. In States whose constitutions did not specify the age qualification, it may be put at thirty years. A person not professing the Christian religion was not likely to be mentioned as candidate for Governor ; exceptions will occur — as that of Jefferson in Virginia. 82 Gubernatorial Qualifications Qualifications of Governors. State Constitutions, i 776-1 800. State N. J. Pa. Del. Md. Va. N. C. S.C. Ga. Ky. Tenn, Const. 1776 1776 1790 1776 1792 1776 1776 1776 1776 1778 1790 1777 1789 1798 1792 1799 1796 Age 30 30 Residence 7 years 111 State. I2yrs. U.S., last 6 years State. 5 years in State. 5 years in State. 10 years in State. 10 years in State. 3 years in State. 12 yrs. citi- zenof U.S. 6 years of State. 2 years cit- izen of the State. Citizen of U.S.,6yrs. resident of State. 4 years cit- izen of the State. Property ;,f50co, of which £ 1000 is freehold. ;^ 1000 free- hold. £ 10, 000 freehold. ;^I500 set- 1 1 e d es- tate, clear. 500 acres land, free- hold, or £ 1000 other property. 500 acres, freehold, or $4000 in other property. 500 acres, freehold. Religion Protes- tant. Christian. P r o t e s- tant. P r o t e s- tant. Term I yr. 3 yrs. 3 yrs. Remarks I yr. 2 yrs. 1 yr. 2 yrs. 2 yrs. 4 yrs. 4 yrs. 2 yrs. President. Inel i gible for 3 years. Styled the President. In eligible for 4 years. Ineligible 3 years in 6. Temporary gov't. Ineligible till 4 years. Eligible I yr. out of 3. Ineligible for 7 yrs. 83 Consfitiitioiial History of the American People Distrust of executive power and fear of execu- tive usurpation characterize democracy at this time. Executive, like legislative, titles varied among the States. The oldest working charter called the executive the President,* a title destined to highest dignity in the country. The Governor had been the most important man in the colony, and by tradition was the most important in the State. Democracy is forced to fall back on cere- mony to take the place of the halo that hedges kings, and the early Governors were dignitaries such as Presidents became in later years. But the dignity of office is at last measured by the real power that accompanies it, in spite of the aristo- cratic airs and fine dress of a Governor or the title by which the constitution requires us to address him. The unwritten law of official life has at last given all Governors the title prescribed in the con- stitution of Massachusetts. After much discus- sion, the federal convention decided to give no title to the national executive other than the name of the office ; whence it has come that the execu- tive of a commonwealth is addressed as " his Ex- cellency " — and the executive of the nation simply as " the President." Where democracy was strong- est and most experienced — as in New England — a Governor might be re-elected at the will of the people ; elsewhere constitutional limitations more or less affected the choice.! Executive qualifica- * Charters, 1606, 1609. t Pennsylvania, 1790, "nine years in twelve"; Delaware, 1792, "three years in six"; South Carolina, 1778, 1790, "two years in Governors in the Early Days of Commonwealths tions were more discriminating in degree than those laid down for Senators — he must be longer a resident of the State and be possessed of a greater amount of property. The ofifice in some States was accessible only to the few having strong family influence. United States citizenship was not a common requisite, as now, for legislators, governors, judges, and minor officials. The Gov- ernor was chosen by the Legislature, except in New England and New York, where he was chosen by the electors. Not until Jacksonian democracy revised the State governments was the Governor chosen by popular vote throughout the Union. During the intervening years the manner of choice was a transition from the old method by royal appointment to the new one by popular election. In case of failure to elect by popular vote, the choice was made by the Legislature, as at present. The Governor was a military rather than a civil officer. His military duties were quite carefully outlined ; his civil functions were obscure. He shone in the splendor which now clothes his staff. His civil functions now almost wholly obscure his military. The difference was carried to practical ends. The pardoning and the veto power were not freely given to him. In popular fancy he was the man on horseback. To-day he is the man six." Annual elections in New England, New Jersey, South Car- olina, 1776. Biennial in New Hampshire, 1784, 1792; South Car- olina, 1778, 1790; Georgia, 1789, 1798; Tennessee, 1796. Quad- rennial in Kentucky, 1792. 85 Coiistitiifioiial History of the American People with the quill. It was a military period, and the soldier rather than the civilian was hero. It is a paradox of modern times that when standing armies have become an institution the civilian, not the soldier, the Iron Chancellor, not Von Moltke, is the hero. In America it was the age of captains, as eighty years later was the age of colonels. The state was conceived as a military rather than an industrial machine. The concept was antithetic to that of the rights of man. As yet there were few offices and no civil service. The gentle art of creating offices was not yet dis- covered. Few were the Governor's appointments, and chiefly in the militia. He could not, unaided by his council, nominate judges or the few civil officers which the State required — such as the attorney-general or the sheriff. His compensa- tion was variously described as honorable, reason- able, and adequate. Perhaps the amount was omitted from the constitutions and left to be fixed by the Legislature because of the fluctuation in the paper money of the times. A salary of nine thousand pounds * seems princely till we learn that it was in fiat money. His function in leQ:islation was also obscure. Popularly, he was supposed to execute, not to make, laws — or, as in our day, to unmake them. He was expected to send an annual message to the Legislature in which he pointed out the needs of the State.! For a time Legislatures seem to have * South Carolina, 1776. t Pennsylvania, the first State to follow the national Constitu- 86 IVheri the Governor IVas Supreme taken these messages literally. In our day they are consigned to a committee and forgotten. The messages of the early Governors remain a fair index of early legislation. As long as this state of things continued, it was unnecessary to limit the power of the Assembly and increase that of the Governor. He was conceived to be the head of the State. That his office was considered one of great dignity is illustrated by the early history of the national government. Men preferred the office of Governor to that of Congressman or United States Senator, cabinet minister or federal judge. John Jay resigned the office of Chief Justice of the United States to become Gover- nor of New York. It was a sign of the times. The State offered more than the United States to him who sought a political career. To be- come Governor was to reach the summit of polit- ical grandeur. Every system of government must be planned to provide against an interregnum. The State is by nature perpetual ; offices must not stand vacant ; civil functions must be performed. A Lieutenant- Governor — or, as he was styled by some, a Vice- President — was provided for. The succession was indirect in some States.* The Governor tion z'n re the message. It originated in New England. (See Massachusetts Constitution, 1780.) * In New England and New York, the Lieutenant-Governor; but in New Hampshire, 1784, to the senior Senator, and in 1792 to the President of the Senate; so Georgia, 1789, 1798, following New Hampshire ; to Speaker of the Senate in Pennsylvania, Delaware, North Carolina, Kentucky, Tennessee. S7 Const if lit ioiial History of tfje American People was impeachable.* Confused functions seem to invite impeachment, as in some States he acted as judge, legislator, and executive. The clearer def- inition of the powers exercised by the President were imitated in constitutions adopted after 1789. Of the executive council — thought at this time essential to the protection of the people — little sur- vives. Its original function in provincial times was to control the administration. It was never a cabinet. In the first constitutions it represented popular distrust of the Governor of the State, as in earlier times it represented royal distrust of the Governor of the colony. The growth of administrative ofBces later meant the decay of this council. For a time it stood for the civil side of executive power, as the Governor stood for the military. Chosen usually by the Legis- lature, it began to change in political character when the members were elected in districts. Be- fore it had disappeared, it exercised executive, legislative, and judicial functions. Clearly the Governor was a military figure intrusted with few powers. It is rather curious that though he has increased in authority, he is less conspicuous in public affairs than he was a hundred years ago. The State courts, like the colonial, followed the English type; but a distinct State government required appropriate courts. The county courts were continued, a new court was created, and the two sets were distinguished as the inferior and the * New York, Virginia, by Assembly; North Carolina, "or by presentment of grand jury." Jurisprudence under the Constitutions superior, or supreme. The nisi prius system was about to be changed. Superior courts exercised both a law and an equity jurisdiction. There were courts of chancery. Judges were appointed by the Governor or chosen by the Legislature,* usually for the term of good behavior. The unreasonable- ness of the age limit t on judges was proved by the appearance of Kent's Commentaries^ after their author had been retired on account of constitu- tional disqualifications to continue a judge in New York. Judges were removable. As to-day, the jurisdiction of the superior courts was final in all cases ; thus appellate jurisdiction was regulated in each commonwealth by law. Not infrequently the judge was ex officio a justice of the peace. The superior courts were too numerous and their jurisdiction too various to be easily classified. They were largely the creatures of the Legislature. Their titles help to indicate their character: pro- bate, admiralty, orphans', chancery, common pleas, oyer and terminer. Their jurisdiction was orig- inal, but not final, and was both civil and criminal. Judicial functions were slightly confused with executive. Many rules which had grown up in practice found their way into the constitutions. Georgia began the innovation of defining juris- diction by specifying the money value involved in a case 4 a- precedent since freely followed. The * New Jersey,Virginia, South Carolina, 1776; Tennessee, 1796; chosen by joint ballot : elsewhere by Governor. t New York, sixty years ; New Hampshire, 1792, seventy years. X Georgia, 1777. 89 Const it uiional Histoiy of the Aiucrican People courts met much as at present, the number of sessions being regulated by law. Clerks were ap- pointed by the judges. All writs ran in the name of the commonwealth, as previously in the name of the King. As at present, litigation went on chiefly in justices' courts, and these were the ob- ject of constitutional care. The justice was ap- pointed by the Governor or elected by the Assem- bly. Democracy had not yet secured control of any part of the judicial system. The justice was a local dignitary who wrote Esquire after his name, and was commonly called the 'Squire. Usually he continued in the office for life and prospered on his fees. Never were a people more given to liti- gation than the Americans in the last century. The Revolution bred innumerable lawsuits and an army of lawyers ranging in ability from John Marshall to Andrew Jackson. Best known in each county was the sheriff, whose office was the first in importance after the Representative, to be filled by popular election. No other official was closer to the people, and none was of greater antiquity. His duties, it was thought, as now, could not be safely intrusted to any man save for a short time, and not for succes- sive terms. This limitation was due to the com- posite character of the office. He was collector, assessor, executor, treasurer, comptroller, police, keeper of the poor, and sheriff — all in one. It was his function as custodian of public and private money that forbade re-eligibility till the lapse of years and his successor had, as is now said, " gone 90 Complications of Early Legal Practice over the books," The office was in a state of transition at this time. As under English law, the sheriff was appointed in some States by the executive ; in others he was chosen by the electors. He was the second officer of the court. The jury system was as yet unshaken, and no hint given of its impending dissolution. The right of trial by jury ranked high among the fresh rights of man. Therefore the jury of twelve men and the grand jury of nearly twice the number were conceived to be pillars of the State. A unique provision which has not become a precedent made the Supreme Court in one State, Massachusetts, an advisory council to the Governor and Legislature. Common law practice was yet distinct from equity practice, and the technical difficulties of real actions, plead- ings, and chancery procedure made the practice of the law a mystery.* England soon after this began the simplification of practice, and America has followed ; but the abolition of distinctions in actions which characterize practice to-day was un- thought of at this time. Not until after the fed- eral judiciary act of 1789 did the State systems bend towards uniformity. They were less respon- sive than the executive or the legislative to consti- tutional revision; yet, judicial reform of some kind has usually been proposed by a convention, and in one instance only the judicial article in a proposed constitution escaped defeat at the poUs.t * Maryland, 1776, contains many provisions, essentially only rules of court. t New York, 1868. 91 Couslilnliondl History of the American People These early courts were the precedent for the fed- eral judicial system, and their virtues survive there in the circuit court and the life-tenure of the judges — the one bringing the courts to the people, the other securing an independent judiciary. Slavery was not an aggressive element ; one State forbade importation;'^ two others,! cruel, treatment of slaves, and the latter provision be- came a precedent in the South. A Representa- tive in Consrress from South Carolina must have been qualified by the ownership of ten negroes, and the requirement was in force three-quarters of a century — till abolished by the thirteenth amendment. Delegates to the Congress of the Confederation were chosen by the Legislatures, and subject to recall. Like Governors and mem- bers of the General Assembly, they were required to be freeholders. No State constitution before 1789 suggested the idea of nationality. Later ones of the period, like their successors, were si. lent respecting United States Senators. Their election has always been regulated by law. Per- sons of foreign birth were as yet few in number, but immigration from the West Indies and the British provinces made necessary some provision for naturalization. The electors were free white men. A few elec- tors. North and South, were free persons of color. Their inclusion in the electorate in New Jersey and North Carolina was doubtless an oversight. * Delaware, 1792. t Georgia, 1798; Kentucky, 1799. 92 The IVhites Debarred from the Franchise That colored men voted in New Hampshire, Mas- sachusetts, and New Jersey is unquestionable.* In a few years public opinion, except in New Hamp- shire and Massachusetts, kept them from the polls. The majority of white men were disqualified from voting. The qualifications for electors were less exacting than those for office-holders. A shorter residence and less property were required. * In New Jersey the right was taken away from them, from aliens, and from females — inhabitatits — by the Constitution of 1776, by act of Assembly, November 16, 1807. See debate on " abrogating the right of free persons of color to vote ;" Pro- ceedings and Debates of the Convention of North Carolina Called to Amend the Constitution of the State, which assembled at Raleigh, June 4, 1835, to which are subjoined the Convention Act, the Amendments to the Constitution, together with the Votes of the People. Raleigh, 1836, pp. 351, et seq. See also Curtis's dissenting opinion, Scott vs. Sandford, 19 Howard, 393. There is no evidence that free persons of color voted in colonial times. Qualifications of Electors Prescribed by the Constitutions 1776-1S00. State Const. Age Residence Property Taxation Religion* Sex Race Native OR Nat- uralized N H 1784 1792 1777 1786 1793 21 21 21 21 21 Town. Town. I year in State. Havin g town privi- leges, f r e e - hold. Freehold Poll-tax Male Male Male Male Male Vt. Foreign- er after I year's r e s i - dence. ,, * In New Hampshire, Massachusetts, Connecticut, and Vermont in the eighteenth century, most of the electors were church members. 93 Cousin II fioiial History of the American People Qualifications of Electors Prescribed by the Constitutions 1776- 1800. — Contin ued. State Mass. N. Y. N.J. Pa. Del. Md. Va. N.C. Const. 1780 1777 1776 1776 1790 1776* 1792 1776 1776* 1776 Age ResidbncEi Property Taxation I year 111 town. 6 mos. in county. 12 mos. in county. r year in State. 2 years in State. I year in county. Freehold o f a n nual in come of .«^3. or es t at e oi£,bo. Freehold of ;^2 or pay - ing rent of 4 o .f. F r e e - hold of ;flOOtO vote for State S e n a- tor. Estate of ^50. Freehold of 50 acres or prop e r t y of;^30. Taxpay- e r , or f r e e - man of Albany or New York City. Taxpay State or Co. tax. State or Co. tax. 1 2 mos. in Freehold Paidpub county, in coun- lie tax' ty of 50 es, may acres for vote for 6 mos. mem before ber of election H. C mayvote forState Senator. * Qualifications "as fixed by law," see Table, p. 96. 94 Religicw Sex Male Male Male or fe- male Male Male Male Male Race White black White Native OR Nat- uralized CoiistUutional Needs of Electors Qualifications of Electors Prescribed by the Constitutions 1 7 76- 1 800. — Concluded. State S. C. Ga. Const. 1776* 1778 1790 1777 Ky. Tenn, 17S9 1798 1792 1799 1796 Age I year in State. 2 years citiz en of the State. 6 months in State. Property Taxation 6 mos. ii count y citizens and in habitants of the State. 2 yrs. in State or I yr. in county. 6 mos. in county. Freehold of 50 acres or town lot or paid taxes equal to tax o n 5 o acres. Same as in 1778. Proper iyoi£io or being of a me chanic trade or a t a X - payer If not f r e e - h older, has paid tax of 3^. ster- ling. Taxpay- Freehold Acknowl- edges the be- ing of a Godand a future state of rewards and punish ments. Sex Race Male Male Male Male Male White White White Native OR Nat- uralized * Qualifications " as fixed by law," see Table, p. 96. 95 k Constitutional History of tlje American People The Qualifications of Electors as Prescribed by Law. State Datb of Law Mass. R. I. Conn. N. Y. N.J. Pa. Md. Va. S.C. March 23, 1786 1762 1715 March 27, 1778 Feb. 22, 1797 Feb. 15, 1799 i Oct., 17S5 } \ Dec. 31, 1796 f Law of 1762-69 Law of 1 78 1 Oct. 7, 1759 Requirements Freeholders who pay one single tax, be- sides the poll, a sum equal to two- thirds of a single poll-tax. Inhabitants. ;^40 in realty, or 40J. per annum rent, or eldest son of free- holder. Realty — 40^-. per annum, or ;^40 in person- al estate. Every mortgagor or mortgagee in posses- sion, and every person possessed of a freehold in right of his wife, vote viva voce for Senators and Assemblymen ; by ballot for Governor and Lieutenant- Governor. Free inhabitants having ;i^5o property, and 12 mos. in the county. Women, aliens, and free negroes, thus qualified, voted. Citizen of State 2 years, paying State or county tax 6 mos. before the election ; sons of electors vote " on age "; i. e., at 21, without payment of the tax. Free negroes not to be electors. Free negroes antl women not to be elec- tors ; an elector a freeman having 500 acres of land unsettled, or 25 acres settled, having thereon a house 12 x 12. Elector voted in the county in which the greater part of his land lay, if il lay in two counties. Poll-tax — 3^ bu. wheat, or 5 pecks oats, or 2 lbs. sound bacon. Repealed Novem- ber, 1 78 1, and made \os . Elector — free white man possessing settled freehold estate, or 100 acres unsettled, or ;^6o in houses, or paying a tax of los. Neither by the Constitution nor the law were free negroes (males) de- nied the right to vote in New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, or Tennessee. There is evidence that they voted in New Jersey from 1776 to 1807 (see act of November 16, 1807, limiting the right to vote to free white male citizens); in New York (acts of March 27, 1778; April 11, 1815; April 19, 1822); in Pennsylvania under Constitution of 1776 (see debate on inserting the word " white," as descriptive of the elector, in the report of the Con- stitutional Convention of 1838); in North Carolina (see debate on " abrogat- 96 Property the Qiialification for the Franchise ing the right of free persons of color to vote," under Constitution of 1776, in debates of the Constitutional Convention of 1835); in Tennessee, from 1776 to 1834 (see Caldwell's Co7istitutional History of Tennessee, p. 93, and compare the qualifications of the elector under the two constitutions). In New England, if the town-meeting admitted the free negro to a citizen's rights.he couldvote. Public opinion in Rhode Island refused him admittance (see Constitutional Convention, 1S18, Art. vi., Sec. 2 ; and of Rhode Island, 1842, Art. ii.. Sees, i, 2). It was not an established right in law, in 1842, that a person having African blood in his veins could be a citizen of the United States; he could not become such by naturalization, as the law re- stricted naturalization to white men. Free persons of color were denied the right to vote in New Jersey, by act of Assembly, in 1807 ; in Tennes- see, by the Constitution of 1834 ; in North Carolina, by constitutional amendment, in 1835 ; in Pennsylvania, by the Constitution of 1838. Thus, of the States that originally allowed them the right, New Hampshire, Ver- mont, Massachusetts, and New York never withdrew it. One trial was made of compulsory voting, and abandoned. It is impossible to know accurately the number of electors. It may be estimated at not more than one hundred and fifty thousand in a population of five millions. Had the suffrage of to-day prevailed, there would have been during these twenty-five years, at any election, not fewer than seven hundred thousand nor more than one million voters. The landless man, it was thought, could not be trusted. Universal suffrage, as we know it, was not thought of. The voters and office-holders comprised a landed aristocracy. Property was the basis of government, and continued to be, in the older States, for more than fifty years. But the struggle for the extension of the franchise began before the century was over, and won its first vic- tories when new States were admitted early in the nineteenth century. The men who made these early instruments I.— G 97 CoustHiitional History of the American People realized that they might prove only temporary, and provided for their amendment and revision. To the Legislatures was left the initiative. Penn- sylvania and Vermont created a Council of Censors to guard the constitution and suggest changes.* To prevent hasty ones, some States made it pos- sible to make periodical revision. The electors were not consulted in making many of these con- stitutions ; but amendments and revisions were usually made with their consent. In some States changes were difficult to make, the elements nec- essary to effect them not being likely to work harmoniously at one time. Gradually the proc- ess of amendment became simpler, and to the electors the Legislature submitted changes and the question of calling a convention. Gradually, also, the practice prevailed of submitting the work of the convention to the electors that it might re- ceive their ratification. This has become the normal procedure. What, then, were the distinguishing features of this body of eighteenth -century supreme law.? Not least in importance was its civil character : it departed from feudal precedents and organized government on a peace footing. Unlike the early, and some later, constitutions of the South Ameri- can republics, and the written constitutions of the continent, it contained no provisions that can be called military in character. Political and civil * Report of Pennsylv'ania Censors in Proceedings of Conven- tions of 1776, 1789, Harrisburg, Part fii. The Reports of the Vermont Censors are in some twenty volumes, down to 1870. 98 Individualism Dominating Politics rights were stated as their own best defence. American democracy thus made a unique contri- bution to the social evolution of the race. These constitutions, and the national — adopted amid and largely from the earlier of them — proclaimed that a new political opportunity had come. It was equality of the eighteenth-century kind, but purer and more accessible than before. In spite of the confusion of functions, the constitutions worked. Henceforth the people should rule by divine right. It is safe to smile at the idea now — as the heresy was promulgated long ago. But amid our smiles and disappointments we still cling hopefully to the heresy, believing that it is not too good to be true. Universal suffrage looks back, with some impatience and more pity, wondering that the fathers applied the theory of equal rights so badly. Theirs was the age of things — ours of persons. The basis of government has changed. The privileges of caste have been thrust back by the forces of universal suffrage. Many seeds of rivalry were sown in these con- stitutions. England was the land of privileges of birth and property, and the Americans were Eng- lishmen of yesterday. It was an age of theories in government ; ours is one of theories in econ- omy. Debating clubs discussed propositions then that we hold as political axioms now. Running through the whole political estate was individual- ism, the dominating notion of the times. Reading between the lines — or, to speak more truly, read- ing later experience into them — we detect ideas 99 Const it iifioihil H/storv of the American People which were the political straws left on the field after the harvest of independence. Whatever we may think of the new governments, they fixed the ancient landmarks, which have never been removed. CHAPTER IV THE TRANSITION OF INDEPENDENT STATES The colonization of America, as carried on by Englishmen, proceeded according to feudal notions. To individuals and companies the Crown granted charters as to feudal chiefs. Raleigh dreamed of a profitable tenantry and a long rent-roll in Amer- ica. All the companies were close corporations, animated by much the same spirit as Raleigh. A continent in a state of nature produces democracy. The economic schemes of feudalism failed ; but the system took political possession of the coun- try, and held on until democracy dislodged it with- in the memory of the living. The tenacious grasp was clear in the first State constitutions, and is traceable in those of our own times.* All govern- ment emanated from the Crown. The idea is still good in politics, and was long paramount in law. Charter privileges, in the early days, were exclu- sively for the members of the corporation, but immigration speedily compelled a change. The corporation was enlarged. This was the first re- form in representation, the first extension of the * The principal authorities for this chapter are the proceedings of the Legislatures and conventions referred to. See note, p. 29. CoiistHiiiional History of the American People suffrage. The record of it fills the early annals of Massachusetts. It was typical of that going on in one form or another in all the colonies, and con- tinued long after they became States. It is a present issue. The unit of political measure was the town in the North; in the South, the county. Some old towns claimed an equal right of representation with counties. For a time it was o-ranted them.* Colonial isolation compelled representation in local government, and ultimately in federal. Much of the emphasis which has been put upon the right of representation is rather due to the economic character of the constituencies. Social efficiency was feeble. Self-protection compelled resort to some system of representation. The Virginia General Court of 1619, with which our Legislat- ures begin, exercised the functions of a judicial body and some functions of a legislative. It is not clear that James the First intended to estab- lish an American Parliament. The House of Stuart was not in the habit of laying such demo- cratic foundations. Nor is it probable that the King called the House of Burgesses into being merely to vex the posterity of his enemies. The Virginia Assembly was a necessity, and the charter was interpreted accordingly. It was an early in- stance of the administrative making the consti- tutional. The men who mana2:ed what were called * As in Virginia. The towns or boroughs preponderated in 1619, whence their delegates gave the name House of Burgesses to the Assembly. — Stith's Virginia, p. 160. 102 Greed Prompted Representative Institutions in the seventeenth century the "adventures to America " had their goal in gain. Therefore they courted immigration. History, we are told often, and incorrectly, repeats itself. History simply re- cords that the principles of human action remain the same. When, two hundred and fifty years after Captain John Smith and the Pilgrim Fathers, foreign immigration poured into the Far West, under the stimulus of the great railroad companies, the tactics of the directors of the London Com- pany of 1611 were repeated. To induce popula- tion, the corporations and proprietaries of colonies offered rare privileges to all who would come, and the Crown, yielding to influence, permitted politi- cal privileges, of which the most important was the right to choose a colonial Assembly. Thus repre- sentative government in America owes much, if not all, to the love of gain. Until the excuse be- came a travesty — and the farce ran on for more than a hundred years — colonization Vv^as carried on for the purpose of propagating the Christian religion among the Indians and bringing them " to human civility and to a settled and quiet gov- ernment." When the last piece of colonization was attempted the purpose was no longer veiled ; the people of Georgia were to destroy the savages and increase the trade, navigation, and wealth of the realm.* American colonization was primarily a commer- cial venture, and the price paid for it was repre- * Charter, 1732, 103 Constitutional History of tijc American People sentative government. The few who, in some col- onies, sought "freedom to worship God" soon caught the infection of the age, and as time passed developed a masterful leadership in trade and commerce. Written in the light of results, the history of the colonies is economic, and the ecclesi- astical is not the controllins: element. It was found that they could not prosper unless po- litical privileges demanded by the people were granted. The three Virginia charters illustrate this. Political organization took a form tending to the democratic. In Massachusetts the corporation was a distinct class. Only after great compulsion did it consent to receive new members, and these of its own choosing. It set qualifications which still kept the mass of the population out of the political organization. Necessity dictated reform. If it were denied, the reformers would emigrate and establish a new colony. The struggle began in 1633, and was the beginning of that for the extension of the suffrage and for equitable repre- sentation. Roger Williams grounded his demands on economic equities, long familiar to later gener- ations in the saying that taxation and representa- tion go together. Rhode Island was as much the fruit of this doctrine in the seventeenth century as American independence in the eighteenth. In granting the reform, Massachusetts prescribed con- ditions which may be called the first American electoral qualifications. They regulated the politi- cal life of the province. The conditions, some- 104 Conflicting Notions Concerning Representation what modified, continued until 1S20. and, further modified, to the present time. In attempting to measure the forces which have shaped democracy in this country, that of individ- uahsm must be assigned perhaps the first rank. It has dominated our laws and constitutions. It was bred by the economies of colonial life. Pro- vincial Assemblies legislated in its interest. That each must protect his own was the dominating spirit of colonial life. Eventually the idea got in the saddle, became the controlling principle of a political party, and overran the laws and consti- tutions of the country. By 1640 the idea of representation was well established in Massachusetts, and the rights of individuals and of towns were the two halves of the political idea. The town idea was communal. This early division has continued to our own times, and in its history worked out two groups of political thinkers : one basing government on persons ; the other basing it on corporations. The idea has had many applications. That of greatest moment has emphasized the national as distin- o^uished from the commonwealth idea: the nation being founded on individuals, as intimated in the phrase " we the people of the United States "; the commonwealth being a political corporation. Under the charter of 1629 there grew up in Massachusetts three political groups — first, the executive, comprising, by the terms of the charter, the governor, the deputy-governor, and the assist- ants ; secondly, these persons and the deputies Consiituiional History of the American People from the towns, together constituting the general court, or Legislature ; and, thirdly, the freemen, who participated at regular times in the town elec- tions. Of these groups, the first and second repre- sented the qualified electors, or freemen. At first the governor, deputy-governor, and assistants were chosen at the town elections, but when the charter was vacated the executive became a Crown officer. There was no effort in Massachusetts to copy after the British Parliament. The assistants were not analogous to the Lords, neither were the deputies chosen out of analogy to the members of the House of Commons. Nowhere in the colonies did the analogy prevail. Not as yet was there an equit- able apportionment of representation. No clear idea of proportional representation was evolved in England or America during the seventeenth cen- tury. After the adoption of the national Consti- tution it became necessary to work out the idea, and it remains a permanent though a partly solved problem. Not until the seventeenth century was almost over did the Crown fully recognize the right of the colonies to choose representatives to their local Assemblies. It was specifically acknowledged in the Connecticut charter of 1662, in the Rhode Island charter of the following year, and in the Massachusetts charter of 1692. It was recognized because the Revolution of 1648 in England had demonstrated that there were constitutional limits to executive authority, and the Crown realized that a monarchical form of government could not be 106 Formation of Two Legislative Chambers administered in England without a formal recog- nition of them. Experience in the administration of government both in England and America led to the formal recognition, by the British Crown and Parliament, of the ancient and undoubted rights of Englishmen to choose their own repre- sentatives. In England these were the members of the House of Commons ; in America, of the General Assemblies. In the earlier part of the seventeenth century the Governor and his council or assistants and the deputies of the towns met in the same room. The first meeting of the House of Burgesses of Virginia was with the Governor. The beginning of the bicameral system in this country was in Massa- chusetts, where as early as 1635 there arose a dif- ference of opinion between the assistants and the deputies of the towns, respecting the request of some inhabitants of Newtown who wished to migrate into Connecticut. This led to the separa- tion of the assistants and the deputies, which was essentially the formation of the two Houses of the Legislature. In 1644 the two groups, assistants and deputies, agreed in enacting a law that thence- forth they should sit apart as co-ordinate bodies. Evidently the bicameral system thus begun was quite as much of native origin as a copy of the home government. Thirty -four years later the two parts of the Connecticut Assembly were recog- nized by law, and before the century closed custom there compelled the Governor and council to sub- mit their several propositions to the entire legis- 107 Coiislifiitioiial Histoiy of the American People lative body for approval. In October, 1698, the council in Connecticut was for the first time styled the Upper House and the deputies the Lower. Thus almost coincident with the time when the New York Assembly set forth the principles of the bills of rights, the bicameral system was estab- lished in America. In the New England colonies the democratic element was stronger than in any to the south ; for the first charter of Massachusetts and those of Connecticut and Rhode Island for- mally recognized the right of freemen to partici- pate in the government. In the proprietary and royal colonies no such right was recognized by charter, although it came to be recognized by custom. To this Pennsylvania was an exception. Penn planned from the first a government demo- cratic in form, promising his people that they should have law- makers of their own choosing and laws of their own making; but the system of the referendum which he attempted to intro- duce, by which the Governor and council were to submit laws to the representatives of the people, proved cumbrous and unsatisfactory. The recog- nition which Penn gave to the rights of the peo- ple forever settled the question of free govern- ment in his province. Three years before Penn inaugurated his " holy experiment," a royal commission provided that the Governor of New Hampshire should himself prepare the laws, with the approval of his council and the deputies of the people; but in 1680 a law of New Hampshire provided that no executive 108 Preponderance of Democratical Ideas ordinance should go into effect unless it had been made by the deputies of the people and approved by the president and council. Thus the order of the initiative in legislation was reversed and dis- tinct functions recognized in the two branches of the Legislature — one comprising the deputies, the other the Governor and council. This reversal in New Hampshire was made necessar}?^ by the con- ditions of colonial life. The Governor could have no peace if he attempted to govern in any other way. This was the experience of all the royal governors. Pennsylvania and Georgia through- out their colonial history had but one legislative House. The executive council, though not nomi- nally exercising the functions of a separate House, was one in fact ; the council was more numerous than in other colonies and showed no marked antagonism to the more popular branch. From the democracy of the colonial era evolved the later civil functions of the commonwealths.* Of these the legislative was of greatest impor- tance and destined to continue, with slight modi- fications, to the present time. Though the Legis- lature in eleven colonies consisted of two Houses, it was the Lower House — the deputies — which developed as the central authorit}^ in the colony. This House was the voice of the politically quali- * The principal authorities for the account, in this chapter, of the transition from colonies to commonwealths are the journals and proceedings of the first State constitutional conventions, and Proviiicial Congresses. See note, p. 29. The bibliography is nearly complete in the State Library Bulletin, additions No. 2. Albany (November), 1894, pp. 266-277. 109 CoiisfHiifioihil History of the American People fied freeman. It was the only part of the colonial government directly responsible to the people. The Upper House in Rhode Island and Connecti- cut was similarly constituted, but in the other colonies, excepting Pennsylvania and Georgia, the council was appointed by the executive and assisted him in executive, judicial, and administra- tive duties. The colonial Governor, except in Connecticut and Rhode Island, was appointed either by the Crown or the proprietary, and was a foreign element in the colonial organization. The meeting of chief importance to the freemen was the annual or semi-annual election at which dep- uties were chosen. With slight exception, the right to vote was limited to persons possessing a prescribed amount of real estate who also were members of a religious sect. They also were required to reside for a prescribed time in the town in which they voted, although this was of less importance than now, as there was relatively little change of residence in colonial times. The principal difference between the qualifications of the elector and the elected was in the amount of property required. In May, 1 775, while yet the Continental Congress was in session, the Provincial Cono^ress of Massa- chusetts asked for advice respecting the reorgani- zation of the government of the province. Al- ready the Revolution had almost transformed the colonies into commonwealths. The complete transition was comparatively easy. At the pres- ent time, a region is set off by Congress as a Terri- The Transition into States tory, in expectation that it will in due time apply for admission to the Union as a State on an equal footing with the older States. The pro- ceeding throughout is regulated by the Constitu- tion and the laws. No analogous regulation ex- isted when the petition of Massachusetts was made to the Congress of 1775. That body had no authority to prescribe any procedure, and no precedent for one existed. Yet the request of Massachusetts was soon followed by similar ones from New Hampshire, Virginia, and South Caro- lina, and the course of events compelled reply. To Massachusetts, Congress replied in June, rec- ommending its provincial convention to request the several towns entitled to send deputies to the General Court to choose them in the usual manner and to instruct them, when convened in Assem- bly, to choose the colonial councillors as provided for in the charter of 1692. This advice was fol- lowed, and the government thus established in Massachusetts continued until supplanted by that of 1780. To the requests of the other colonies Congress replied, on the 3d and 4th of No- vember, 1775, but only by way of advice, urging them to summon a free representation of the States in order to establish " such a form of gov- ernment as in their judgment will best promote the happiness of the people and most effectually secure peace and good order in their colony dur- ing the continuance of the dispute with Great Britain." Congress was unwilling even to give this somewhat evasive advice. Public sentiment Constiiiifimal History of the American Teople had so profoundly changed that the transition from colonies to commonwealths could be more easily made than many in Congress realized. These were Revolutionary times; public sentiment was changing from day to day, and the true status of public affairs was difificult of definition. Yet the colonies were not without means of guidance. The civil organization with which each was best familiar was a sufficient basis for a new one. The Lower House of the General Assembly was the nucleus for a reorganization of the government. It is clear enough now that the normal procedure would have been for the Assembly in each colony to provide for the election of delegates to a con- stitutional convention which should formulate a plan of government, and submit it to the qualified electors. If approved by them it should become the supreme law of the State. This procedure, however, was almost out of the question in most of the colonies. John Adams had declared in Consfress that the work of orfjanizino: the com- monwealths on the basis of colonies " could be done only by conventions of representatives chos- en by the people in the several colonies in the most exact proportions." But Adams was ahead of his time. It was not until the loth of May, 1776, that Congress adopted the decisive resolu- tion, recommending " to the several Assemblies and conventions of the United Colonies " where no government sufficient to the exigencies of their affairs was established, to adopt one " best con- ducive to the happiness and safety of their con- Abnormal Civil Procedure stituents in particular and America in general." This involved the independence of the United States, and was opposed by all who still trusted in a reconciliation. It would appear from the lan- guage of the resolution that the work of reorgan- ization was to emanate from the colonial Assem- blies, or their successors, known in some colonies as the Provincial Congress or colonial convention. Times were pressing, and ft seemed advisable to reorganize the colonial governments as soon as possible. This may extenuate the fault, if there be any, in the advice which Congress gave. Doubt- less it seemed unadvisable that the organization of representative government should be delayed in any colony by the mere preliminary procedure nec- essary to the calling of a normal constitutional convention. The precedent which this Congres- sional resolution suffered to be set up may be said to have dominated the States during the eighteenth century, for during the years from 1775 to 1800 it was the exception when a State followed what later times recognize as the normal course to ob- tain a constitution. Within two weeks NewHampshire followed the advice of Congress. Its Assembly, which called it- self a provincial convention, decided that a new convention should be summoned. For this pur- pose a census of the inhabitants was taken and the delegates chosen were apportioned to the number of electors in the colony, and empowered to exer- cise the functions of government for one year. They met on the 2 1 st of December at Exeter, I.— H 113 Const iliiiioihil History of the American Tcople and made the first constitution for that State.* They called their body a Congress and assumed other functions than that of making a State consti- tution. The convention took unto itself the title and authority of a House of Representatives, and, following the advice of Congress, elected twelve persons to be Councillors and to comprise the oth- er House. The form of government was intended to be only provisional. Had peace between Great Britain and the colonies been restored, the govern- ment thus inaugurated would have been dissolved and the colonial organization restored. The con- vention, therefore, was not a normal constitutional convention, but a composite body, of revolutionary character, chosen under peculiar circumstances and exercisino: functions which in times of reo'ular civil administration are never exercised by the same authority ; for this convention exercised executive, legislative, and judicial functions. The Upper House, or Council, being a creation of the Lower, the traditional division of the Legislature into tw^o branches can hardly be said to have been followed.! * Most of the towns of the State were represented by the sev- enty-six delegates to the Exeter Congress. Matthew Thornton was one of the signers of the Declaration of Independence ; three members were delegates to the Continental Congress — these three and one other to the National Congress. Two committees were appointed to bring in a constitution ; that oi five consisted of Matthew Thornton, Meshech Weare, Ebenezer Thompson, Wyse- man Cloggett, Benjamin Giles. The original draft is said to be in John Hurd's hand. General John Sullivan, though not a mem- ber, had made important suggestions. Weare became Governor in 1776; Sullivan, in 1790. See Provincial Papers, vii. ; State Papers, viii. t New Hampshire Provincial Papers, 'Vol. vii., pp. 644 et seq. 114 Some Conventions and Their Results It was not long before the autocratic character of the new government caused popular dissatisfaction, and on the loth of June, 1778, there assembled at Concord another convention, which continued in session nearly a year, during which time a new constitution was drawn up and submitted to the several towns for approval. This constitution was rejected, and on the second Tuesday of June, 1781, a third convention assembled at Exeter, continuing in session two years and a half. A new constitu- tion was made during its nine sessions. Mas- sachusetts, meanwhile, had adopted a constitution, which was closely followed by New Hampshire. At last, approved by the people in their town-meet- ings, the new constitution was duly inaugurated with much ceremony on the 2d of June, 1784. It has been observed by legal writers that the New Hampshire conventions of 1778 and 1781 were strictly constitutional conventions, because they were summoned in due form by the authority of the existing government of the State ; their dele- gates were duly chosen for a specific purpose, and, met in convention, they formulated a plan of gov- ernment which, having been submitted to the electors in their several town - meetings, was duly ratified. On the ist of November, 1775, the Provincial Congress of South Carolina proceeded to frame the first constitution of that State, adjourning on the 26th of March of the following year. This Congress originated as a committee of the colony, a body distinct from the colonial Legislature. 115 Consi-itiitional History of the Aimrican People Like the first constitution of New Hampshire, this of South CaroHna was to exist until a rec- onciliation between Great Britain and the colonies should be made. The precedent for South Caro- lina was obviously the analogous parts of the Brit- ish government. The procedure in South Carolina was abnormal. The convention was revolutionary in character and originated not in any direct act of authority of the government of the colony, but in the advice of Congress.* The constitution thus framed was not ratified by the electors and did not give general satisfaction, though acquiesced in dur- ing the stress of Revolutionary changes. On the 5th of January, 1778, the General Assembly, though not specifically chosen to make a constitution for the State, promulgated one. Between the meeting of the first and the second conventions of South Carolina, the Declaration of Independence had been issued, and, chiefly in consequence of this act and all it implied, the people of the State acquiesced more willingly in this second constitution. But it was of no greater validity than an act of Assembly, and was so held by the Supreme Court of the State. Obviously those who made it did not comprise a constitutional convention, for they lacked the * The classic treatise on Constittitiotial Conventions, their His- tory, Powers, and Modes of Proceeding, by John Alexander Jameson, LL.D., late Judge of the Superior Court of Chicago, Il- linois; Chicago, Callaghan & Co. (fourth edition), 1887, remains the first and best authority on the subject. I hav^e used its con- clusions without hesitation. Before his death Judge Jameson conveyed his library to me, which, with my own collection of Conventions, Debates, and Proceedings, has enabled me to con- sult most of the material on the subject in existence. 116 High Individuality of the Virginia Convention authority delegated to such a body. However, this second constitution, made in the council chamber, continued in force until 1790, when a convention assembled at Columbia on the 3d of June and promulgated a constitution, which, several times amended, continued in force until 1865. The next State to act was Virginia, which, in April, 1776, elected forty-five delegates to a pro- vincial convention.* They met at Williamsburg * The Proceedings of the Convention of Delegates held at the Capitol, in the City of Williamsburg, in the Colony of Virginia, on Monday, the 6th May, 1776. (Reprint) Richmond, 1816; 86 pp. ; Ordinances, 19 pp. See also The Virginia Convention of 1776, Grigsby, Richmond, 1855. No other convention assembled to make a State constitution has enrolled so many eminent men. Of the one hundred and twenty -three members, Jefferson was soon to write the Declaration of Independence, and, with him, Richard Henry Lee, Benjamin Harrison, Thomas Nelson, and Chancellor Wythe were to be signers. Lee, Harvie, and Ban- ister were to sign the Articles of Confederation ; Patrick Henry, Edmund Randolph, John Blair, George Mason, Chancellor Wythe, Richard Henry Lee, Thomas Nelson, and Madison were to be chosen delegates to the Federal Convention ; Henry, Nelson, and Lee refused to attend ; Randolph and Mason refused to sign the constitution ; Wythe was absent on the day when it was signed; Blair and Madison signed it. Nineteen of the members served as delegates to the old Congress, and twenty-one became mem- bers of the national Congress. Richard Henry Lee and Henry Tazewell became Senators of the United States ; Henry, Jeffer- son, Nelson, Harrison, Randolph (Edmund), and James Wood be- came Governors of the State ; Jefferson and Madison became Presidents twice ; both served as Secretary of State, and Ran- dolph as Attorney - General ; Blair was appointed by Washing- ton an Associate Justice of the Supreme Court. Nine were subse- quently chosen Presidential Electors — Henry, Harvie, and Wood, in 1789; Blair, Wythe, and Page, 1801 ; Read, Wythe, and Page, 1805 ; Page and Harrison, 1809; Richard Henry Lee, Harrison, and 117 ConsiHutioiial Histoiy of the American People on the 6th of the following May, and on the 29th of June promulgated the first constitution of the com- monwealth. This convention, like that of South Carolina of 1778, was a Revolutionary gather- ing, chosen to supplant the ancient House of Burgesses, and to establish a government that would organize all the forces of the State in oppo- sition to Great Britain. It was not specifically empowered to make a constitution. The frame of government it adopted was destined, however, to continue in force until 1830. This constitution is famed for its bill of rights, drawn up by George Mason. When Congress gave the general advice to the colonies to organize State governments, New Jersey was already under the control of political committees and a Provincial Congress. On the fourth Monday of May, 1776, representatives were chosen throughout the State, to the number of sixty- five, equally distributed among its thirteen coun- ties. They assembled at Burlington on the loth of June.* They acted as a General Assembly rather Page, in 1813. The majority of the members were conspicuous in the government of Virginia as legislators, judges, and county officials. * See its Journal, Trenton, 1831. Withcrspoon, Hart, and Clark were among the signers ; and Witherspoon signed the Articles of Confederation. Paterson signed the Constitution of the United States. He was nine times Governor of the State; Washington appointed him an Associate Justice of the Supreme Court. Eleven were delegates to the old Congress, and twelve to the national. Paterson, Dickenson, and Frelinghuysen became United States Senators (1 789-1 799). Two became Presidential Electors— Dick- enson, in 1793, and James Mott, in 1809. 118 Constitutions Determined by Contingencies than a convention to frame a new plan of govern- ment, but the functions of both were probably in the mind of the electors when they were chosen. They exercised both functions, and, on the 2d of July, promulgated the first constitution of the State. Their work, like that of similar bodies in New Hampshire and South Carolina, was declared to be temporary and provisional. If a reconcilia- tion should take place, this charter — for so the Burlington convention styled its work — should be null and void. Otherwise it should be " firm and inviolable." The course of the people of Delaware in secur- ing a constitution conformed with the sugges- tion of Congress, and with normal requirements. The Delaware House of Assembly in July, 1776, passed a resolution in accord with the Declara- tion of Independence; and, further, provided for a special election, on the 19th of August, of a con- stitutional convention, to consist of thirty persons, ten from each county in the State. These were to assemble at Newcastle on the 27th of the month, " and immediately proceed to form a gov- ernment on the authority of the people of this State." During a session of twenty-eight days they adopted the first constitution of Delaware. This was the first constitution in the country made by the representatives of the people chosen for the express purpose, and the first convention that was normal in all respects.* * The Delaware Convention consisted of thirty members. 119 Const if lit ional History of tJje American People The Pennsylvania Assembly was superseded in July, 1776, by a provincial convention composed of representatives chosen from the counties of the province through the instrumentality of the county committees. The resolution of Congress of the loth of May led to the meeting at Carpen- ter's Hall, Philadelphia, on the i8th of the follow- ing June, which was attended by the leaders of the Revolutionary cause in the city and the ad- joining counties. At this meeting it was decided that a provincial convention should be called " for the express purpose of forming a new govern- ment for this province on the authority of the people only." But the meeting proceeded to fix the requirements of those entitled to vote at the coming election of delegates, prescribing the quali- fications which were incorporated in the first constitution of the State. A new apportionment of representation was agreed upon, and the elec- tion was fixed for the 8th of July. A conven- tion assembled a week later at Philadelphia, and adjourned on the 28th of September, having pro- mulgated the first constitution of the common- wealth.* It assumed the functions of a legisla- George Read, one of the signers both of the Declaration of Inde- pendence and of the national Constitution, was president. Read, Van Dyke, McKean, and Evans, were members of the old Con- gress; Van Dyke, McKean, and Dickinson signed the Articles of Confederation, Five became members of the national Congress — Read and Richard Bassett as Senators ; Bassett also signed the national Constitution, McKean became Chief Justice of Pennsyl- vania ; Sykes, a Presidential Elector in 1793. * The Proceedings of this Convention, and that of 1790, Har- risburg, 1825. It had ninety-six members. Franklin was presi- I 20 A Commission Supersedes the Government tive body, choosing delegates to Congress and appointing a council of safety with executive powers, thus combining double functions, as did the conventions of New Hampshire and South Carolina. Thus it was not a constitutional con- vention of the normal type. In North Carolina, as in South Carolina and Virginia, the movement to reorganize the colonial government originated in a provincial convention which had taken the place of the General Assem- bly. This decision was made at Halifax early in April, 1776, and the work of preparing a constitu- tion was given to a committee, but the committee, owing to the shifting state of affairs in the col- ony and of its own opinions, accomplished noth- ing, and the government of the colony was placed for a while in a commission consisting of leading patriots. These took the initiative in reorganiz- ing the government by calling an election of dele- gates to a congress to assemble at Halifax on the 12th of November, with power both to legislate and to frame a constitution. Thus elected and dent. Five of the members were signers — Franklin, Clymer, Smith, Wilson, and Ross. Four signed the national Constitu- tion — Franklin, Mifflin, Clymer, and Wilson. Four others, also, were members of the old Congress— Matlock, M'Clean, Samuel and Thomas Smith. Ten became members of Congress. Frank- lin and Mifflin became Governors of the State. Wilson was ap- pointed Associate Justice of the Supreme Court by Washington, and was a Presidential Elector in 1789. His decision in Chisholm t/j. Georgia (2 Dallas, 419) ranks among the great decisions. It is only within recent years that Wilson's greatness has been dis- covered, although Washington declared him to be the ablest con- stitutional lawyer in the Federal Convention. Constitutional History of the American People chosen for a particular purpose, it prepared a declaration of rights and promulgated a form of government, having first ratified it, " in open Con- gress," on the 1 8th of December, 1776.* Thus this body, like the New Hampshire and New Jersey conventions, performed a double function. The constitution which it framed continued in force until 1835 without amendment; as amended then, and again in 1854, it continued in force until 1863. As early as January, 1775, the Provincial Con- gress of Georgia organized ; and, in conformity with the recommendation of the Continental Con- gress, it adopted a temporary form of government on the 1 5th of April, 17 76, similar to that first formed in New Hampshire. It continued until the pro- mulgation of the constitution of 1777. The con- vention which made this instrument consisted of delegates elected in the parishes and districts of the State, from the ist to the loth of September, 1776. The election had been called by the Presi- * The Journal of this Convention in Colonial Records of North Carolina, Vol. x., pp. 913-1013. It consisted of 172 delegates — Richard Caswell, president : William Harper and Joseph Hewes were among the signers ; Cornelius Harnett signed the Articles of Confederation. Ten of the members became delegates to the old Congress, and sixteen to the national ; Samuel Ashe be- came Governor of the State. The constitution is said to be the work of Thomas Jones, Thomas Burke, and Richard Caswell. Charles Robeson. John Carter, and John Haile, were from Wa- tauga (Tennessee). Six members had signed the Mecklenburg Resolutions (Wheeler, Vol. i., p. 85). Memucan Hunt signed the treaty with Texas, April 25, 1838. Samuel Ashe was a Presi- dential Elector in 1805 and 1809. Conventions for Ratification dent of the commonwealth by proclamation. The chief purpose of the proclamation was to put the colony in a more perfect state of military defence. Thus the body which framed this constitution as- sumed the functions of a Legislature as well as of a constitutional convention. Eleven years' ex- perience demonstrated its defects, and when the ratification of the national Constitution was in progress in the State, the opportunity was taken to amend it. A convention, consisting of three delegates from each county, assembled at Augusta on the 24th of November, 1788, and undertook to amend the State constitution and to consider the Constitution of the United States, which had just gone forth from Philadelphia. The State consti- tution made by this convention was itself sub- mitted to a second convention for ratification, which met at Augusta on the 4th of January of the following year, and suggested changes in the constitution which it was called to consider; a third was summoned and met on the 4th of May, 1789, and two days later ratified that known as the constitution of 1789. This instrument con- tinued in force nine years, when another conven- tion assembled at Louisville on the 8th of May, and on the 30th promulgated the third constitu- tion of the State. It took effect on the first Mon- day of October of that year, and, several times amended, continued in force until 1865. In New York, as in New Jersey, there was a strong anti-revolutionary party, which for a time delayed the formation of a State government. 123 Conslihitioiial History of the American People Delay was due to the better organization of the opposition rather than to public sentiment. On the 31st of May, 1776, the Congress of the colony, the successor of several congresses unfriendly to a change of government, provided for the election of another, which should be empowered to insti- tute a new government. On the 9th of July the convention met at White Plains.* It formally adopted the Declaration of Independence, and at- tempted to make a constitution. On the loth the body changed its title from " Provincial Con- gress of the Colony " to " The Convention of the Representatives of the State of New York," and agreed that the subject of a new form of govern- ment should be taken up on the i6th. When this day arrived the British had entered New York, and legislative business was so pressing that the consideration of a constitution was postponed un- til the I St of August. All magistrates and civil '* Some account of the convention is given in the appendix to the Proceedings and Debates of the New York Convention of 1821. Albany, 1821. The ninety-six delegates did not all attend at one time. Philip Livingston and Lewis Morris were among the signers; James Duane and William Duer signed the articles ; Gouverneur Morris also signed the articles, and, as a delegate from Pennsylvania, the Constitution of the United States. The constitution was adopted (substantially as John Jay wrote it) "on the evening of Sunday, the 20th of April." Sixteen of the members became delegates to the old Congress ; and to the national Congress, John Sloss Hobart, and Gouverneur Morris, of the Senate. Jay became the first Chief Justice of the United States and afterwards Governor of New York ; Taylor also be- came Governor; Duane and Hobart became United States Dis- trict Judges; Yates and Veeder were Presidential Electors in 1793; Lewis Morris and Ten Broeck, in 1797. 124 Disturbed Condition of Public Business officers well affected towards the cause of inde- pendence were urged meanwhile, by resolve of the convention, to continue the exercise of their duties until they should receive further orders. The only change made was in the style of judi- cial business. Processes henceforth should issue in the name of the State of New York. When the ist of August came, a committee of thirteen was appointed to prepare and report a constitu- tion. To this committee several eminent men belonged, among them John Jay, Gouverneur Morris, R. R. Livingston, and Robert Yates. The report of the committee was delayed from time to time by the condition of public affairs. Not only was the committee unable to perform its duty, but the convention itself was frequently in- terrupted and compelled to change its place of meeting. Thus at one time it assembled at Har- lem ; at another at Kings Bridge ; at another at Odell, in Philip's Manor; and later at Fishkill, at White Plains, and at Kingston. At one of these meetings only three members were able to attend. The convention, therefore, was a com- mittee of safety exercising legislative and admin- istrative functions. On the 6th of March, 1777, at Kingston, the committee formally appointed to prepare a constitutional form of government was directed to report six days later, and on that day the draft of a constitution, written by John Jay, was read. It was discussed until the 20th of April, when the convention, still being in session at Kingston, adopted it unanimously. But the 125 Const itiitioiial Histoiy of the American People form of government adopted, though not sub- mitted to the people for ratification, met with general approval. It was amended in 1801, and continued in force forty-four years. No State was more peculiarly situated during the Revolution than Vermont. Its territory was claimed by Massachusetts, New Hampshire, and New York. Territorial disputes engendered by these hostile claims raged through the period of the Revolution. The State, meanwhile, effect- ually maintained its autonomy and independence. It was among the first to respond to the recom- mendation of Congress, and its patriot leaders assumed the responsibility of initiating a new form of government by issuing letters, which served as writs of election, to the different towns, urging them to choose delegates to assemble at Dorset on the 24th of July, 1776.* The questions of independence and of a new government were before this convention, and were postponed until January of the following year, when the con- vention assembled at Westminster and declared * See Vermont Historical Society Collection, Vol. i., and Slade's State Papers, passim. This convention had fifty mem- bers — including Ira Allen, the historian of the State; H. Allen, later member of the national Congress ; Thomas Chittenden, later Governor of the State: also, Matthew Lyon, whose vote made Jefferson President. He was convicted, fined $1060.90, and im- prisoned, under the sedition law; but on July 4, 1840, twenty years after his death, Congress ordered the fine to be repaid to his heirs, with interest from February, 1790. This convention re- assembled at Dorset, September 25th, with fifty-eight members — among whom were H. Allen, Ira Allen, Thomas Chittenden, and Moses Robinson ; the latter became Governor of the State in 1789. 126 Pennsylvania and the yermont Constitution Vermont a free and independent State.* On the 2d of July of that year it reassembled at Wind- sort and continued in session six days, during which time it formulated the first constitution. This was not submitted to the people for ratifica- tion, but, as promulgated, was approved by the Legislature in 1779 and again in 1782, by which act it became the law of the State. As is well known, it closely followed the lines of the first constitution of Pennsylvania, chiefly through the efforts of Thomas Young, a citizen of Philadel- phia, who, on the nth of April, 1777, had pub- lished an address in which he urged the inde- pendence of the State and the election of a con- vention to form a constitution. The constitution of Pennsylvania had just been adopted, and was suggested as a suitable model for Vermont4 This convention assumed both legislative and con- stitutional functions. In 1 786, as provided in the constitution, a slight revision was made by the council of censors, an interval of seven years hav- ing elapsed, and the revised instrument was again adopted by the Legislature and declared to be * Westminster, October 30,1776; seventeen members; the session, beginning January 15, 1777, had twenty -one members, among them Thomas Chittenden, H. Allen, and Ira Allen. t Windsor, June 4th ; seventy-two members, including Thomas Chittenden, Ira Allen, H. Allen, G. Olin, and Israel Smith — the two latter members of Congress under the Constitution. It reas- sembled at Windsor, July 2d, with twenty-four members, among them Thomas Chittenden. X The Pennsylvania sources of the Vermont Constitution are shown in The Constitution of the State of Vermont, etc. Brat- tleborough, C. H. Davenport & Co., 1891. pp. 40-44. 127 Const il lit ioiial History of the American People a law of the State. In 1793 the council caused another revision, the convention which made it adjourning on the 9th of July. This revision was formally adopted by the Legislature on the 2d of November and declared to be the supreme law of the State. It was not again altered in the eighteenth century, but in the nineteenth was four times amended, chiefly in its administrative provisions. The council of censors, which by the terms of the constitution of Vermont was em- powered to call a convention once in seven years, was suggested from the constitution of Penn- sylvania ; and the conventions which have been thus called, though more numerous than found in any other commonwealth, have convened un- der the authority of the government of the State. The change from colony to commonwealth was effected in Connecticut by act of the General Assembly that met on the loth of October, 1776. King George had " unjustly levied war against this and the other United States of America," had " de- clared them out of his protection, and abdicated the government of this State," thus absolving its people from allegiance to the Crown of Great Brit- ain. As the Representatives of the United States in General Congress assembled had declared that "these United States are and of right ought to be free and independent," therefore all political con- nection between the people of Connecticut and Great Britain was totally dissolved. The form of civil government continued as established by the 12S Revolution by Act of Assembly charter received from Charles the Second, so far as an adherence to the charter was "consistent with an absolute independence of this State of the Crown of Great Britain." All officers, civil and military, already appointed by the State, continued in office, and the laws of the colony remained in force until otherwise ordered. The change was not formally ratified by the people, either in con- vention or at the town -meetings. However, it was supported by public opinion. In no State was the change from colony to commonwealth made an issue at the polls. In Rhode Island the change was effected as in Connecticut. The General Assembly, on the 4th of May, passed an act discharging the people of that colony from allegiance to the King. Some- what curiously the vote was unanimous in the Upper House, but not unanimous in the Lower, six of the sixty members present voting in the negative. It is not improbable that more than one -tenth of the electors in both States disap- proved of the act of separation. The change from colony to State was not overwhelmingly popular anywhere. Though constitutional forms were followed, the change was accomplished by the few who were leaders of the people. It was a representative, not a democratic, act. Not until the nineteenth century was well begun were con- stitutional changes submitted to the test of popu- lar vote, and not until the nineteenth century was half gone did it become customary to submit pro- posed constitutional changes, as separate proposi- I. — I 129 Constitutional History of the American People tions, for the approval of the electors, either at regular or special elections. Though Massachusetts was the first colony to apply to the Continental Congress for advice re- specting a change in government, it was the last of the original States to adopt a constitution. Its constitution may be said to have been in progress nearly four years. On the 5th of May, 1777, the Massachusetts Assembly recommended that the people in their several town elections should choose representatives to the next General Court fully empowered to form a constitution of govern- ment for the State, but this should be submitted to the electors for ratification, and unless approved by two-thirds of them should be considered as re- jected. In June a committee of twelve was ap- pointed to prepare a constitution, and it reported in the following January. The draft received the approval of the General Court on the 28th of Feb- ruary, 1778, and was submitted to the people on the 4th of March. Not more than one - fifth of the electors voted for this constitution, and many towns made no return whatever. The chief ob- jection to the instrument was an indirect one — that it had not been made by proper authority. On the 20th of February of the following year the General Court, profiting by recent experience, submitted two questions to the electors of the towns — whether they desired a new constitution, and whether they would empower the members of the General Court to call a convention for the sole purpose of forming one. By large majorities 130 Adams Writes the Massachusetts Constitution the people returned affirmative answers, and on the 17th of June the General Court provided for an election of delegates to a convention to meet on the ist of September. Assembling in Boston on that day, it appointed a committee of thirty to formulate a declaration of rights and a constitu- tion of government, and adjourned until the 28th of October, principally because several towns in the State were not yet represented. The Committee of Thirty began its w^ork at once and delegated to John Adams the preparation of a declaration of rights, and to him, together with James Bowdoin and Samuel Adams, the formation of a draft of a constitution. The subcommittee, however, re- ferred the entire matter to Adams, just as the committee on the Declaration of Independence, four years before, had referred its preparation to Jefferson. Adams thus wrote the entire instru- ment* On reassembling, on the 28th of October, the report of the Committee of Thirty was ac- cepted by the convention, which proceeded to dis- cuss the report. It adjourned on the nth of November until the 5th of January, 1780, in order that there might be a better attendance. Not until the 27th of the month were there sufficient members present to proceed to business. The discussions continued until the 2d of March, when the convention adjourned to the first Wednesday * For John Adams's account of his part in preparing the Massachusetts Constitution of 1780, see "Life and Works of John Adams," The Model, Vol. i., p. 287; Vol. iv., p. 215-267; Vol. v., p. 463. 131 Constitutional Historv of the American People of June, having provided that the opinion of the people should be taken on their work in the in- terval. Reassembled on the 7th of June, and with official evidence from tlie returns that the whole constitution had been approved by more than two -thirds of the electors, the convention on the 1 6th officially proclaimed the instrument " to be the constitution of government established by and for the inhabitants of the State of Massachu- setts Bay"; and further declared that the new constitution thus formed contained all the princi- ples of representative government in America. Its excellence has been attested by its continua- tion in force until the present time.* Though amended thirty -four times, the changes have not affected the principles on which the plan rests, but are chiefly administrative in character.! * See Journal, Boston, 1832; also Convention of 1820, Jour- nal, pp. vi.-vii. t The convention had 320 members. Of these John Adams, Samuel Adanrs, John Hancock, and Robert Treat Paine were signers; John Hancock, Samuel Adams, and Samuel Holton signed the Articles of Confederation ; Gorham signed the Con- stitution of the United States. John Hancock, Samuel Adams, Increase Sumner, James Sullivan, Caleb Strong, and Levi Lin- coln became Governors of the State — Strong and Lincoln each twice. William Cushing declined the office of Chief Justice of the United States, and Levi Lincoln that of Associate Justice. John Lowell became United States District Judge. Theophilus Parsons was for a short time Attorney-General of the United States under John Adams. Ten of the members became dele- gates to the old Congress and twelve to the national — of these George Cabot, Benjamin Goodhue, and Caleb Strong were Sena- tors (i 789-1803). Seventeen of the members became Presidential Electors (i 789-1 821). CHAPTER V THE CONSTITUTIONAL ELEMENTS When the territory south of the Ohio was or- ganized by act of Congress on the 26th of May, 1 790, the people of Kentucky were already asking for admission to the Union. As early as 1784 they had sought separation from Virginia, had met twice in convention at Danville, and formu- lated petitions to the Virginia Legislature asking for separation. A third convention unanimously voted independence. The cession of western lands by Virginia solved the problem of the in- dependence of Kentucky, and removed the last obstacle in the way of the organization of a State government. On the ist of June, 1792, the State was received into the Union "as a new and entire member of the United States of America." An- other convention had assembled at Danville on the 2d of April, 1792, and in seventeen days had made a constitution.* It was not submitted to * The Kentucky convention of 1792 had forty-five members. George Nicholas is said to have been the principal author of the constitution. He, John Campbell, and Matthew Walton became members of Congress. Isaac Shelby became the first Governor of the State. The vote on the pro-slavery clause in the consti- tution stood twenty-six for, sixteen against. Among the sixteen ^33 Constitutional History of the American People the people for ratification. The population of the State came chiefly from Virginia, and the new constitution closely resembled that of the parent State. It continued in force seven years. Its de- fects were chiefly in the organization of the legis- lative and judiciary, and in the provisions for the apportionment of representation. On the 2 2d of July, 1799, a constitutional convention met at Frankford and continued in session until the 7th of August, at which time it promulgated a new constitution, to take effect on the ist of Jan- uary, 1800. This second constitution of the com- monwealth, remedying the defects of the first, continued in force fifty years.* were six ministers — John Bailey, Benedict Swope. Charles Kav- enaugh, George Smith, James Crawford, James G. Garrow. Rob- ert Breckinridge was a member of this convention. Five served as Presidential Electors— Benjamin Logan (1793), Shelby (1797, 1801, 1805). Hubbard Taylor (1805, 1809, 1813, 1817, 1821, 1825), Matthew Walton (1809), Richard Taylor (1813, 1817, 1821, 1825). For a list of the members of this convention I am indebted to Hon. R. T. Durrett, of Louisville, and to Mr. W. D. Hixson, Li- brarian, Maysville, Kentucky. * The Kentucky convention of 1798-99 consisted of fifty-seven members. A. S. Bullitt (president), John Adair, Richard Taylor, Thomas Clay, Samuel Taylor, William Steele, and Caleb Wallace were members of the convention of 1792. William Logan, Henry Crist, Thomas Sandford, and John Rowan became members of Congress, and John Adair, John Breckinridge, and Buckner Thruston, United States Senators (i 801 -11). Harry Junes be- came United States District Judge. Breckinridge, one of JeflFer- son's intimate friends, became Attorney-General of the United States under him. Felix Grundy became Chief Justice of the State ; later, having removed to Tennessee, member of Congress (1811-14), United States Senator (1829-38), Attorney-General un- der Van Buren (1838-40), and again Senator (1840) — the year of his death. William Irvine became a Presidential Elector in 1805 134 The State of Franklin At the time when North Carolina ceded her western lands to the United States a portion of them, known as Washington County, was already occupied and called East Tennessee. The North Carolina Assembly showed little disposition to part with this territory, and repealed its act of cession in the year in which it was passed. Mean- while the people of Tennessee had assembled in convention at Jonesboro and attempted to organ- ize an independent State government. The re- peal of the North Carolina act caused a second convention at Jonesboro, which voted indepen- dence and gave to the State the name Franklin, or Frankland ; both titles being used. The Jones- boro convention assembled in December, 1784, had agreed on a constitution, and had submitted it for popular approval. It provided that before the year closed the people should choose a second convention for the sole purpose of ratifying the constitution, or amending it as public opinion might demand. This ratifying convention met at Greenville on the 14th of November of the follow- ing year. The opinions respecting the constitu- tion laid before the convention were so various that it was found quite impossible to harmonize them. After much debate a committee was appointed to prepare and submit a form of government. It based its work on the constitution of South Caro- lina, though deriving help from other Southern and 1809. The list of members was sent me by Hon. R. T. Durrett, Louisville, and by Mr. W. D. Hixson, Librarian, Mays- ville, Kentucky. 135 Constitutional History of the American People constitutions. Thus its work was in a measure composite. The convention, organized as a com- mittee of the whole, immediately rejected the re- port of the committee, whereupon, with equal haste, the constitution of North Carolina was read, ap- proved, and adopted. To this decision there was strong dissent, especially from the members of the late committee, whose objections and those of other members of the convention were formally set forth in the journal. A State government was, however, organized, and official notice was sent to the Governor of North Carolina, informing him that the inhabitants of Franklin had declared themselves a free and independent State. The rejection of the composite plan reported by the committee led to the formation of a North Caro- lina party in Franklin, and for a time great dis- order prevailed. As early as 1785 a delegate was sent to Congress to present to that body a me- morial for the admission of Franklin as a State of the Union. It was not until 1790 that Con- gress accepted Tennessee as a cession from the State of North Carolina. For nearly six years Franklin existed as a quasi State, although it was not recognized by Congress or by the other States. The organization of the territory south of the river Ohio in 1790 made it possible for Tennes- see, like Kentucky, to proceed normally in its course for admission, and six years later, on the nth of January, a convention assembled at Knox- ville, continuing in session until the 6th of Feb- 136 Eminent Personages in the Conventions uary, when it promulgated a constitution.* This was followed by the admission of the State on the ist of June. The constitution thus approved con- tinued in force until 1834. These conventions enrolled many eminent men. If the federal convention be included, five men af- terwards Presidents of the United States assisted in the work. Washington and Madison, and Gerry, the fourth Vice-President, belonged to the federal convention ; John Adams to the Massachusetts convention of 1779. Jefferson was chosen a dele- gate to the Virginia convention of 1776, but was represented by an alternate. As the author of the Declaration of Independence he was, in a sense, a member of all the conventions, for it became the common bill of rights. Andrew Jackson was a member of the Tennessee convention of 1796. Jay, Ellsworth, and Rutledge became, in turn, Chief Justice of the United States: the first was a member of the New York convention of 1777, the second and third, of the federal convention. Seven * See Journal of this convention, Knoxville, 1796; reprint, Nashville, 1832. It consisted of fifty -five members. William Blount, the president, had signed the Constitution of the United States as one of the delegates from North Carolina ; John Adair became Governor of the State (1820-24). Eight of the delegates became members of Congress, and of these four were United States Senators — William Cocke (1796-97, 1 799-1 805), Andrew Jackson (1797-98, 1823-25), William Blount (1796-97), Joseph An- derson (1797-1815). Tradition says that the State was named Tennessee on motion of Andrew Jackson. W. C. C. Claiborne was a delegate. The original draft of the constitution is said to have been made by Charles McClung. See also Caldwell's Studies in the Constitutional History of Tennessee, Cincinnati, 1895, Chap. V. 137 Constitutional History of the American People delegates became associate justices of the court. Nine were cabinet ministers. The members, in the a2:cTre2:ate, numbered about seventeen hundred, of whom upwards of three hundred served in Con- gress — the greater part under the Constitution. The State Les:islatures enrolled more than Con- gress. Some became Governors, and a greater number became members of the State judiciary. Twenty-seven were signers of the Declaration of Independence; fourteen, of the Articles of Con- federation ; and of the thirty-nine who signed the Constitution of the United States, one-third were members of State conventions. Witherspoon signed the Declaration, the Articles of Confed- eration, and the constitution of New Jersey. Franklin and George Clymer were signers of the Declaration, the Constitution of the United States, and the first constitution of Pennsylvania; Franklin was president of the convention which made it. By a curious coincidence, George Read signed the first constitution of Delaware, as pres- ident of the convention, and, with Franklin, the Dec- laration and the Constitution of the United States. James Wilson was a signer of the Declaration, the national Constitution, and the second constitution of Pennsylvania. Gouverneur Morris signed the constitution of New York, the Articles, and the Constitution of the United States. Roger Sher- man, who has the unique distinction of signing our three great state papers — the Declaration, the Articles, and the Constitution — was a mem- ber of Cong^ress when the Connecticut LeQ:islature Our Revolutionary Law-givers adopted the bill of rights of 1776. Thus it ap- pears that no one signed these great papers and a State constitution also. Richard Henry Lee might have stood in that unique place in history. He signed the Declaration of Independence, the constitution of Virginia, the Articles of Confeder- ation, and was elected a delegate to the federal convention, but declined to serve. To these men was given the unparalleled oppor- tunity of establishing a republican form of govern- ment in the new world. When one reflects on the momentous consequences of this act, he may, in some degree, measure the importance and suc- cess of their labors. Happy for America that she had such men at so critical a moment in her his- tory. A hundred and fifty years of colonial ex- perience in the elements of representative govern- ment contributed to train those whom posterity \v\\\ always call The Fathers. In ancient times codes and constitutions were associated with the names of individuals — a Draco, a Lycurgus, a Solon. Three Americans must henceforth take rank among the law-givers — Thomas Jefferson, author of the Declaration of Independence; John Jay, author of the New York constitution of 1777; and John Adams, author of the Massa- chusetts constitution of 1780. Each derived some help from precedents and the suggestions of col- leagues. If we knew as much about the genesis of ancient codes as about that of the American constitutions, Draco, Lycurgus, and Solon might divide their honors with forgotten contempora- 139 Constitutional History of the American People ries. Codes and constitutions are naturally com- posite in their origin. Other forces than the varied membership of a convention helped to work out these constitutions. One constitution influenced another, as Massachusetts influenced New Hampshire; Pennsylvania, Vermont; Vir- ginia, Kentucky; North Carolina, Tennessee — as the fifteen State conventions adopted before 1787 influenced that of the United States, and as this, in turn, influenced all which the commonwealths have since adopted — nearly a hundred in number. From 1776 to 1800 interstate influence was feeble. The survival of what is supposed to be the fittest makes such instruments composite, and has al- ready transformed some into small treatises on government. All the States had constitutions. South Caro- lina, New Hampshire, and Vermont had two each before the national Constitution was made. Rhode Island and Connecticut had unwritten constitu- tions, for they had outgrown their charters, though nominally organized under them. The federal convention made abundant use of this mass of precedent. It cast the supreme law of the United States into the form prevailing in the common- wealths, dividing the powers of government into legislative, executive, and judicial, and, with few exceptions, making the grant of power general. State precedents were followed in calling the na- tional Legislature the Congress, with two branches, styled the Senate and the House of Representa- tives, also in calling the executive President, and 140 The Constitution Founded on State Laws the courts supreme and inferior. The title Presi- dent ran back to the first charter of Vireinia. The regular retirement of a portion of the Sen- ate, the provision for a census, the right of the House to originate money bills, the President's message, his oath of office, his power to veto, to pardon, to fill vacancies, and to command the army and navy, and the Presidential succession were all suggested from the States. The basis of repre- sentation in Congress — that of the States for the Senate and districts for the House — had precedents in the method of choosing the two branches of the Legislature in Virginia and Massachusetts. The Vice - President was a State suggestion. As we have seen, the manner of choosing the Governors varied, being direct in the North and indirect in the South. The convention, therefore, had a fair field for compromise, and fell back on special elec- tors. Maryland, alone of all the States, had an Electoral College, which chose its State Senators. It has been said that this was the model for the Presidential Electoral College. If true, the con- vention failed to copy the first quality of the prec- edent. Maryland consists of two parts, the east- ern and the western shore, having little in common. To give them an artificial bond and hold the com- monwealth together by stronger ties, the Annapolis convention of 1776 devised the choice of the State Senate by an Electoral College. The voters in each county chose two electors every fifth year to meet at Annapolis. Twenty-four constituted a quorum, and were empowered to choose fifteen Senators 141 Coiislituiional History of the American People "either out of their own body or the people at large." Had the federal convention strictly followed the Maryland precedent, Presidential Electors would vote, not by States, but as an electoral convention, similar to that which nominates the national ticket. Evidently the framers did not aim at consolidation — the dominant idea in the Maryland precedent. It was left to political parties to make the Presi- dential Electors a unifying body, but in doing so parties have stripped the electors of discretionary power and reduced them to a registering machine. The Maryland method of choosing Senators was really no precedent, except for the mere word — "electors." The device adopted in 1787 for choos- ing the President was original with the convention, was not founded on experience, and has failed to work as planned. The clause for the rendition of fugitives from justice was a transcript from the New England Confederation of 1643, and conformed with colo- nial legislation. Provision for the admission of new States was an obvious necessity, and followed a specific clause on the subject in the Ordinance of 1787. To the national judiciary the States con- tributed the life-tenure and the circuit system, though these had long been the practice in Eng- land. Had the commonwealths made judicial offices elective, and the occupancy running for years, and abolished the circuit system, the na- tional Constitution would undoubtedly have done the same. The national Constitution profited by the experience of the commonwealths in legisla- 142 Analysis of the National and State Constitutions tive procedure ; in fixing the incompatibility of certain State and federal offices ; and, most mark- ed of all, in soon responding, in the adoption of the first ten amendments, to the powerful prece- dents of State bills of rights. The original feat- ures of the national Constitution consist in the composition of provisions rather than in their novelty. As it approached novelty it entered debatable ground. Organically, as well as law- fully, the commonwealth constitutions are a part of the national, and the latter is a part of them. It was in a large degree a generalization of ex- perience under the first ones, and has strongly tended to bring to a common form all the con- stitutions proposed and adopted since 1787. It effected little of this in the eighteenth century. The changes made in State constitutions from 1789 to 1800 were chiefly in recognition of the existence of a federal government ; in a few clauses providing for the apportionment of repre- sentation on the basis of the federal census ; in prescribing the qualifications of Congressmen ; and in defining what State and federal offices are incompatible. Not until political parties were in full swing did the national Constitution enter upon an administrative change. Eventually, political administration wrought amendments which are recorded in the text of the supreme law of the Union and of the several States. But mere verbal changes only intimate this revision of ideas. The unwritten law itself has been revised. The ques- tion, What is constitutional ? is answered by what 143 Const it lit ional History of the Atnerican People practical politics may succeed in reading into a constitution. There is no standard dictionary of politics. Textual definitions count for little in (government. The various meanins^s which now for more than a century have been read into the national Constitution by successful political par- ties have been crystallized, for a time, in the con- stitutions of the commonwealths. The supreme law of the land thus becomes an inconstant quan- tity. Its variations are made evident only after time has set them in perspective. The boundaries of the United States ao;reed upon in the treaty of peace of 1782 remained un- changed, except in the Oregon country, for twenty years, and to this day constitute portions of the boundaries of twenty-nine commonwealths. Many years passed before these were surveyed. During these twenty years the States ceded their western lands to the national government and took their present boundaries. On the 13th of July Con- gress passed the act familiarly known as the Ordinance of 1787, by which the cession north of the Ohio was organized as the Northwest Terri- tory, in one district, divisible at the discretion of Congress. The laws of inheritance operated with- out discrimination — the estates of resident and non-resident proprietors in the Territory who died intestate descending in equal parts to the heirs. Wills were attested by three witnesses, and con- veyances of real estate by two. An exception was made in favor of the French and Canadian inhabitants settled at Kaskaskia, St. Vincents, and 144 Law-making IVitbout Legislative Act ion the neighboring villages, who professed to be citi- zens of Virginia. To them the laws of Virginia applied respecting wills and deeds. The Gover- nor was appointed by Congress for three years, but might be removed sooner by the President. He resided in the Territory, and owned within it a freehold estate of one thousand acres of land. Congress also appointed a secretary, commis- sioned by the President, for four years. He was required to reside in the district and own a freehold estate in it of five hundred acres. The court con- sisted of three judges, two of whom might form a court. Each judge was a resident, possessed of a freehold estate of five hundred acres in the Territory. The court exercised a common -law jurisdiction. The judges were in commission dur- ing good behavior. A peculiar provision in the act determined the early laws. The Governor and the judges might adopt such laws of the original States, criminal and civil, as in their judgment seemed best suited to the circumstances of the Territory. They reported these laws to Con- gress, and, unless disapproved, they continued in force.* The Territorial Legislature might change these laws later if it saw fit. The Governor was made commander-in-chief of the militia of the Territory, with power to appoint all officers below * Many of the early laws of the Territory were adopted from the State codes, especially from Pennsylvania, New York, Mas- sachusetts, Virginia, New Jersey, and Kentucky. See Laws of the Territory of the United States Northwest of the Ohio, Cin- cinnati, W. Maxwell, mdccxli., pp. 225. (" Maxwell's Code.") Facsimile Reprint, Robert Clarke & Co., Cincinnati. I.— K 145 Constiiutional Hisfory of the American People tlie rank of general officers ; these were appointed and commissioned by Congress. He also ap- pointed magistrates and civil officers in each county or township. It was also made his duty to lay out the district, or those portions of it in which Indian titles had been extinguished, into counties and townships, but this provision was subject to future legislative changes. As soon as the Terri- tory contained five thousand free male inhabitants of full age. Representatives from the counties or townships were chosen to the General Assembly, one Representative for every five hundred free white males until the number of Representatives amounted to twenty- five, after which the appor- tionment was regulated by the Legislature. No person was eligible to the Assembly unless he had been a resident of the district three years, and a citizen of the United States for an equal time, and possessed two hundred acres of land in his own right. In order to be an elector of a Repre- sentative, every person was required to own fifty acres of land in his own right in the district, to have been a citizen of one of the States, and a resident of the district; or, having the requisite property qualification, to have had a two years' residence in the district. Members of the As- sembly were chosen for two years. In case of a vacancy by death or removal, the Governor issued a writ for a new election. The General Assembly consisted of the Governor, the Legislative Council, and the House of Repre- sentatives. The Council consisted of five members, 146 A Synopsis of Limitations chosen for a term of five years, unless sooner re- moved by Congress. Three of the Council con- stituted a quorum. The manner of choosing a Council was a survival from colonial times. Every five years, as soon as the Representatives had met in regular session, it was their duty to nomi- nate ten persons, residents of the Territory, and possessed of a freehold estate in it of five hundred acres each, and return their names to Congress. From the ten thus nominated Congress chose and commissioned five to serve as Councillors. In case of a vacancy in the Council, the House nominated two persons, qualified as before, for each vacancy, returned their names to Congress, which appointed and commissioned one of the nominees for the re- mainder of the term. The powers of Governor, Council, and House were limited. The limit on the powers of the legis- lative, chief in importance, as time soon disclosed, was the celebrated sixth article forbidding slavery and providing for the return of fugitive slaves. But the five articles were also limitations in the nature of a bill of rights. The first secured relig- ious freedom. The second made secure the habeas corpus, proportionate representation, the course of the common law, the right to bail, the right to moderate fines and exemption from cruel and unusual punishments, the rights of property, and the inviolability of private contracts. The third article, which is justly entitled to as great fame as the sixth, made it obligatory upon the Legislature to maintain schools ; " religion, moral- 147 Const it itiional History of the American People ity, and knowledge being necessary to good gov- ernment and the happiness of mankind" — a provi- sion echoing: the sentiment of the educational clauses in the constitution of Massachusetts of 1780, from which doubtless it was taken. The same article also made the observance of good faith towards the Indians obligatory. Their lands and property should never be taken from them without their consent; their property rights and liberty should never be disturbed unless by just and law- ful wars authorized by Congress; and in all their dealings with the Indians the whites should ob- serve justice and harmony. It is somewhat curious that one article should contain provisions, as was soon proved, so hopelessly discordant. The Terri- tory, and the States which might be formed in it, were forever to remain " a part of this Confederacy of the United States of America." Its inhabitants were to pay their portion of the federal debt. The Territorial Legislature, and the Legislatures of new States that might be created, could never interfere with the primary disposal of the soil by the United States. The lands and property of the United States were exempted from taxation, and in no case could non-resident proprietors be taxed high- er than resident — a provision destined to be adopted in later years in every State constitution west of Pennsylvania. The navigable rivers of the Terri- tory were declared to be common highways, for- ever free to all citizens of the United States. The entire territory northwest of the river Ohio, by the fifth article, was ultimately to be formed into not Provisions for the Admission of States fewer than three nor more than five States. Their boundaries were defined by the article, a provision of slight importance, as the}^ were alterable by Con- gress. Five new States might be formed out of the Territory, and be admitted to the Union when- ever Congress might decide that they had suffi- cient population. They should be admitted on an equal footing with the original States and form permanent constitutions and State governments. One condition only was prescribed — that the con- stitution and government should be republican in form and in conformity with the principles of the Ordinance, meaning especially the celebrated sixth article on slavery. If Congress deemed it expedi- ent, a State might be admitted with less than the prescribed population. In the following year, on August 7th, the Assembly of Virginia formally ratified the Ordinance as a "compact between the original States and the people and States in the territory northwest of the Ohio River." The territory of the United States south of the river Ohio was organized on the 26th of May, 1 790, as one district, for the purpose of temporary govern- ment. The act conferred upon the inhabitants all the privileges and benefits set forth in the Ordinance of 1787 for the government of the territory northwest of the river. There was, how- ever, one exception, of far-reaching importance, expressed in the act of Congress of the 2d of April, by which Congress had accepted the ces- sion of the claims of the State of North Carolina to the district known as Tennessee. The act of 149 Constitutional History of the American People acceptance contained ten conditions, of which the most important provided that the laws in force and in use in the State of North Carolina at the time Congress accepted the cession should con- tinue in force within the Southwest Territory until repealed or otherwise altered by the legislative authority of the new Territory. As North Caro- lina was a slave State, and as slavery had already extended into the Southwest Territory, by this con- dition .slavery was forever practically established there. At least, that portion of the Ordinance of 1787 by which slavery was prohibited in the Northwest Territory could never apply to the territory southwest of Ohio as long as the Legis- latures of the Southwest Territory chose to enact slave laws. This condition, limiting the power of Congress and making it dependent upon the will of a Territorial Legislature, or its successors — the Legislatures of Kentucky and Tennessee — was the first of its kind in our constitutional history. It made the Ohio River the permanent boundary line between free and slave soil, and was a limitation which, during the next sixty years, was continually returning to vex Congress. It was a condition which has largely escaped the notice of historical writers. Writers and speakers have often de- scribed the Northwest Territory as having been made permanently free soil by the Ordinance of 1787, and the Southwest Territory slave soil by the Ordinance of 1790, omitting to explain that slavery was established by Congress in the South- west Territory as a condition dependent upon the 150 SHOWING CIVIL DIVISIONS AND DISTRIBUTION OF POPULATION A Compromise on Slavery will of its local legislative authority. Slavery- southwest of the river Ohio was a victory over national sovereignty, and the result of surrender of the powers of Congress to a Territorial Legis- lature. However, its establishment was considered just and equable. The States which had ceded the Southwest Territory were slave-holding States; those which ceded the Northwest Territory, except Virginia, were free soil. By excluding slavery from the Northwest and permitting it in the Southwest, it was supposed that all political and ethical equities would be realized, and that the progress of the country would be harmonious, if not homogeneous. In order to adapt the Ordinance of 1787 to the Constitution of the United States, the first Con- gress at its first session re-enacted and modified it by providing that the Governor and all the other ofBcers of the Territory hitherto appointed by Con- gress should be nominated by the President and appointed with consent of the Senate. This act was further modified on the 8th of May, 1792, au- thorizing the Governor and judges of the Terri- tory northwest and in that southwest of the river Ohio to repeal any laws which they had made. The Secretary of State was instructed to provide proper seals for all the public offices in the two Territories, and any supreme or superior court judge in them was authorized to hold court in the absence of the other judges. Before the spring of 1800 population had flowed into the North- west Territory so as to make its subdivision into 151 Coustitiiiiivhil Hisfoiy of the American People separate governments desirable ; and on the 7th of May Congress provided that after the 4th of July of that year that part of the Northwest Territory lying to the v^^estward of a line beginning on the Ohio opposite the mouth of the Kentucky River, and a line thence to Fort Recovery, and thence north until it intersected the boundary line between the United States and Canada, should constitute the Territory of Indiana. Its civil government was organized under the Ordinance of 1787. As soon as its Governor should receive satisfactory evidence that it was the wish of the majority of the freeholders to elect an Assembly, although there might not be five thousand free male in- habitants of full age in the Territory, an Assembly should be chosen. Until that number should be attained, the number of Representatives to the Territorial Assembly should not be fewer than seven or more than nine, and be proportioned by the Governor according to the number of free males of the age of twenty -one years and more which the counties might respectively contain. Chillicothe was made the capital of the Territory northwest of the river Ohio, and St. Vincents of the Indiana Territory. On the 4th of March, 1791, Vermont was re- ceived into the Union " as a new and entire mem- ber of the United States of America," the first addition to the original thirteen. Kentucky was admitted on the first day of June, 1792, and Ten- nessee just four years later. On the 7th of April, 1798, the fifth Congress, 152 struggle for the Mississippi Territory at its second session, provided for the establish- ment of a government in the Mississippi Territory, and also for the amicable settlement of the limits of the State of Georgia. The domain between the Mississippi River and the western boundary of Georgia, as it exists to-day, was claimed by that State. Perhaps no other part of the country had been claimed by so many nations and common- wealths. By the act of the 7th of April, Congress inaugurated a peaceful settlement of the dispute by empowering the President to appoint three com- missioners to meet those appointed by Georgia for the purpose of determining the claims of the United States and of Georgia to the territory lying west of the river Chattahooche, north of the thirty-first degree of north latitude — the old boun- dary between the United States and West Florida determined by the treaty of 1783 with Great Brit- ain — and south of Tennessee. The area bounded on the west by the Mississippi, on the north by a line to be drawn due east from the mouth of the river Chattahooche, on the east by that river, and on the south by the thirty-first degree of north latitude, was organized into one district and called the Mississippi Territory. Over this district the President was authorized to establish a govern- ment in all respects similar to that northwest of the Ohio, excepting the article respecting slavery, and he was further authorized to appoint all nec- essary officers for the new Territory. At the dis- cretion of Congress it might later be divided into two districts, with separate governments. The 153 Constitutional Histoiy of tljc American People establishment of this new government in no wise impaired the right of the State of Georgia, or of any citizen therein, to the jurisdiction of the soil of Mississippi Territory. All rights and privileges granted to the people of the territory of the United States northwest of the river Ohio by the Ordinance of 1787 were to be fully possessed and enjoyed by the people of Mississippi. As soon as the new Territorial government was estab- lished no person could bring any slave into Mis- sissippi from any place without the limits of the United States; every person convicted of the offence was required to forfeit for each slave so imported the sum of three hundred dollars, of which one- half was to go to the United States, and the other to the informer. Every slave brought in should receive his freedom. A sup- plemental act was passed on the loth of May, 1800, by which so much of the Ordinance of 1787 and of the act of 1789 providing for the govern- ment of the territory northwest of the river Ohio as related to the organization of the General As- sembly and prescribed its powers took effect in Mississippi, but until the number of its free male inhabitants of full age amounted to more than five thousand not more than nine Representatives were returned to its General Assembly. By this act provision was first made for the apportion- ment of representation in the Territory and for the election of a General Assembly. Provision was also made for the settlement of the disputed boundary between Georgia and the United States 154 Extension of Territory by Exploration before the fourth day of March, 1803. These organic acts somewhat changed the map of the United States, but the changes affected only Terri- torial and commonwealth boundaries. Meanwhile an important discovery had extend- ed our national domain. On the 29th of April, 1 792, Robert Grey, captain of the ship Columbia, which had left Boston on the 30th of September five years before, entered the mouth of the great river which drains the Oregon country, and which now is known by the name of his ship. For nine days he explored it, and thus established the claim of the people of the United States to the vast area drained by the Columbia and its tributaries. The country formed no part of the area claimed by France or Spain, for it constituted an entirely dis- tinct basin, bounded on the French and Spanish sides by highlands, and drained by rivers hitherto unknown to Europeans. The law of discovery, which gave to France, England, and Spain their possessions in the New World, gave the Oregon country to the United States. Nearly a century after its discovery it became three common- wealths. The analogy between these Territorial acts and the constitutions of the eighteenth century is ob- vious. Qualifications for electors and office-hold- ers like those in the States were re-enacted. Ex- cept the religious qualification, all the old ones were retained in kind, and, nearly, in degree. Future Western States were thus laid, for a time at least, on Eastern foundations. As yet there was 155 Cousfiliifioiial History of the American People slight suggestion of the triumphant democracy. The Ordinance of 1787 had the quaHties of a con- stitution in its bill of rights and its provisions for the three departments of government. Its anti- slavery clause was destined to affect every new commonwealth, and, after seventy-eight years' trial, to become a part of the national Constitution — hav- ing first become part of seventeen State constitu- tions. Before the century closed, the national do- main was nearly equally divided between States and Territories. As it is a principle in law that everything capable of ownership must have an owner, so is it in politics that every region capable of government must be subject to civil authority. To this last the Indian lands were an exception. The tribes were treated as hostile nations. They were close neighbors to the settlements. The frontier was not more than fifty miles from the Ohio, in the Northwest Territory, and about the same distance from the Savannah in the south. Kentucky, with Tennessee, was an oasis of civili- zation in a desert of savagery. The settlements in the Cumberland Valley comprised Tennessee. Fear of the Indians still kept the whites penned between the Atlantic and the Appalachian high- lands. Pontiac had conspired to accomplish what the French had failed to do. Not until Wayne's victory and the treaty at Fort Greenville, in 1795, did Indian hostilities cease in the Northwest Ter- ritory and immigration to the West begin. With- in seven years from the close of his terrifying campaign, the population west of Pennsylvania 156 The Indians Bar Migrating Settlers was sufficient to organize the State of Ohio and the Territory of Indiana. But no similar cam- paign was undertaken against the even fiercer tribes in the Southwest, and for nearly twenty years longer they served as an impassable barrier to immigration. The effect was to turn the tides of population northwestward and to carry into Ohio and Indiana hundreds of families who other- wise would have settled in Mississippi. But pop- ulation always moves in the line of least resist- ance. Into the Western country the Ohio River was the natural highway. It ran out of New York, Pennsylvania, and Maryland, and lapped their population. Had it not been for the Choc- taws and Cherokees, the migrating spirits of Ken- tucky would have turned southward. The south- ern part of Indiana Territory was quickly taken up by settlers from Virginia and Kentucky. Into northern Ohio poured the overflow from New England, New York, and Pennsylvania; the western reserve was New Connecticut. Thus North and South met for the first time in Ohio and In- diana. Thirty years after Wayne's victory, when Ohio had a population of six hundred thousand souls, its General Assembly disclosed, in the nativ- ity of its members, the composite character of the State. Of a hundred members, only one was a native of Ohio. Before the century closed three lines of migra- tion extended along the wilderness roads into the West. The northern began at Albany and ex- tended to Detroit along the forty - third parallel. 157 Const H lit ioual History of tbe American People From Albany to Black Rock it was a wagon-road. There it divided. Some immigrants went by boat, others by wagon, to the Ohio country. Gradual- ly a permanent population was established along this route, constituting a peninsula of civilization extending from New England to the head of Lake Erie. The central line was older. It began at Philadelphia and reached to Pittsburgh and the Ohio River. It was the artery that fed central Ohio with some of the best blood of New Jersey, Pennsylvania, and Maryland. The southern line was the Virginian, which turned by many divisions through the valleys into the Southwest and across the mountains into Kentucky and Tennessee. Over it passed many settlers from the Carolinas. In after times the New York and Pennsylvania routes became transcontinental, and to-day com- prise two vast railroad systems which, with their connections, make the people of all the common- wealths neiorhbors. The Virsfinia route has devel- oped into the transportation system of the South Atlantic seaboard, with connections in the Gulf States and westward to California. The beginnings of these three systems date from the early move- ments of population into the West and Southwest.* As the century drew to a close it was found that a vast wave of population had overspread the settled area, moving the frontier westward forty -one miles. Isolated settlements were made * The railroads do not coincide with the early wilderness roads ; these led across streams and over mountains ; the railroads run in the valleys, and follow the banks of rivers. The Growth of Cities fully fourteen hundred miles from the Atlantic — at Prairie du Chien, St. Louis, and Natchez, on the Spanish frontier. In twenty-five years popula- tion had so increased that, evenly distributed over the country, there would have been seventeen persons to the square mile. Syracuse, Roches- ter, Buffalo, Cleveland, Pittsburgh, and Cincinnati were only hamlets. Nine cities could boast, each, more than eight thousand people. Of these Charleston had eighteen thousand; Boston, twenty- five ; Baltimore, twenty -six; Philadelphia, forty; and New York, sixty. The commonwealths were agricultural, and twenty-nine people in thirty lived in the country. For this reason the constitutions made slight provision for local government. Four of the large cities caused difficulties in the appor- tionment of representation, and were the subject of special constitutional provisions.* Otherwise the States were governed as rural communities. America had not yet entered the manufacturing age. Public interests were homogeneous, and, largely for this reason, few limitations were placed on the powers of the Legislatures. As yet the population was chiefly native-born. About one- fifth of it was slave, almost wholly in Southern States. Forming so large a proportion, one might * Constitutions of Maryland, 1776, Art. vi., and Amendment of 1799; 1851, iii., Sees. 2, 3. Of South Carolina, 1776, xi. ; 1778, xii., xiii., xxiv. ; 1790, i.. Sees. 3, 7, and Amendment of 1808. Of Pennsylvania, 1776, Sec. 19; 1790, !., Sees. 4, 5, 7 ; Amendment of 1857, i., Sees. 2,4. Of New York, 1777, iv., vii., xii.; Amendment of 1801, iii., iv. ; of 1821, i.. Sec. 4, and Amendment of 1833 ; 1846, iii.. Sees. 3, 5 ; vi.. Sec. 14 ; x. ; of 1894, iii., Sees. 4, 5. 159 Constilutioiial History of the American People expect to find slavery a larger element in the con- stitutions of the South, With the exception of the provisions in two States* requiring merciful treatment of slaves and regulating their emanci- pation, the laws and constitutions of the common- wealths, North and South, were almost alike in excluding them from the basis of apportionment, and also in excluding free negroes from the fran- chise. Looking backward, we detect little in the civil institutions of the commonwealths then that pre- saged the America of our own times. Individual- ism dominated the life of the people. Democracy- was yet many years in the future. The masses were controlled by a small party of men, leaders in opinion. Savagery lay close to civilization. There were not a hundred men of great wealth in the country. Yet life was clean, robust, and, for most of the population, comfortable by their standard, but meagre, narrow, and colorless by ours. The State was not yet conceived as having those func- tions which are now commonly called "duties." The constitutions of the eighteenth century lack- ed the features which distinguish those of to-day.' Fundamental to them all was the idea that the basis of government is property.! * Kentucky, 1792, ix. ; 1799, vii. ; Georgia, 1798, iv., Sec. 2. t The most complete record of the debate on the " Basis of Government — Property or Persons?" is found in the Journal of Debates and Proceedings in the Convention of Delegates Chosen to Revise the Constitution of Massachusetts, Begun and Holden at Boston, November 15, 1820, and Continued by Adjournment to January 9, 1821. Reported for the Boston Daily Advertiser, 160 Early Constitutional Basis of Government Boston, 1 82 1, 8vo, 292 pp. Among the delegates were Daniel Webster, Joseph Story, Levi Lincoln, ex-President John Adams, Josiah Quincy, and Joseph B. Varnum. See Webster's speech on the subject, a week later, December 1 5, repeated and elaborated in his " Plymouth Oration." Proceedings and Debates of the Virginia State Convention of 1829-30. Richmond, 1830, 8vo, 919 pp. See, especially, the speeches of Madison and Monroe z'tt re " Property the Basis of Government." Among the delegates were John Marshall, Philip P. Barbour, Abel P. Upshur, Governor William B. Giles, William P. Taylor, CHAPTER VI THE FIRST STRUGGLE FOR SOVEREIGNTY No American constitution has defined sover- eignty. Intentionally or not, the idea has been left to develop through administration. Through- out colonial times there raged a struggle between Assemblies and royal Governors, precipitated chiefly by the independence of the Governors and the obligation imposed on the Assemblies to grant them supplies. Before a pacific compro- mise was worked out, American independence made the legislative and the executive alike re- sponsible to the electorate. For a time, while the colonies were inchoate States, the executive was almost in abeyance. The Assemblies took the initiative and organized new governments. Thus it came to pass that most of the early constitu- tions were the work of Legislatures. It has already been pointed out that in these new governments the function of the executive was military rather than civil. The legislative, the Lower House in particular, was the depositary of authority. The States began with a weak executive. Meanwhile another Legislature, and ultimately another executive, were exercising a quasi-conti- nental authority. New-born enthusiasm called the 162 Efforts to Fonmdate the Union Congress of the Confederation into being, and for about eight years supported it. Its members were delegates from the States, chosen by their Legisla- tures, and responsible to them only. They were subject to recall, and were paid by vote of the Legislatures, if paid at all. From the relation thus established sprang the idea that the Conti- nental Congress was the agent of the States. For a time it exercised authority as if it were original; and, under the pressure of war, was sustained by public opinion. But as the struggle became a drain on the resources of the people, it was less enthusiastically supported. Congress had no popu- lar constituency. It was the creature of the States. The sentiment of union which had flickered for more than a century and a quarter burned for a time with brighter light when the colonies de- cided to declare their independence. On the day when the committee was appointed to prepare a Declaration of Independence, another was named to report Articles of Confederation. In twenty- three days the first committee com- pleted its work. It was unanimously adopted and given to the world. On the 8th of July the second committee reported a plan of union; it was destined to a different reception and a far different fate. For a year Congress discussed it, in desultory fashion, and then sent it to the Legis- latures, before whom it dragged along, under more or less hostile discussion, for nearly five years. It was not adopted by the requisite number of States until the ist of March, 1781. The Decla- 163 Constitutional History of the American Teople ration defined the States as free and independent ; the Articles of Confederation declared that each State retained its sovereignty, freedom, and inde- pendence, and every power, jurisdiction, and right not expressly delegated by the Confederation to the United States in Congress assembled. The new government had no popular constituency. It represented States. Meantime the power of the Assemblies had not lessened. They rested on in- dustrial foundations, they could levy taxes, they could compel the execution of their own laws. Thus established, the States prospered, but the Confederation fell into decay. While the Articles were on the circuit, some States were making their first constitutions ; and when finally the Articles were adopted, Massachusetts, the last State to adopt a constitution, was assembled in convention for the purpose. Thus it happened that one clause in the Articles was copied, with slight verbal change, into the Massachusetts constitu- tion of 1780, declaring the State "free, sovereign, and independent," and that it could exercise every power not expressly delegated to the United States. The next constitution to be adopted was in New Hampshire, in 1784, and it copied the clause from the Articles, just as Massachusetts had done. Eight years later it was repeated in the second New Hampshire constitution. But the word sovereign had been applied by a State before the Articles were written. On the loth of October, 1776, the Connecticut Assembly, by a legislative act, declared the State "free, sov- 164 state Sovereignty in the Constitutions ereign, and independent." This act may be said to be the parent of the idea of State sovereignty. Save by these three New England commonwealths, the word sovereign was not used in a State consti- tution of the eighteenth century. When Connecti- cut adopted a constitution in 1818, the word sov- ereiofn was not used, nor was State sovereia^ntv claimed. New Hampshire dropped the word and the idea from its constitution in 1876. The Massa- chusetts provision has never been modified, and is probably the only portion of the Articles of Con- federation that survives in a State constitution. Two years after the adoption of the Articles, on the 3d of September, the treaty of peace was signed. It mentioned the thirteen States severally by name, called them the United States, and declared that the King treated with them as free, sovereign, and independent States. Reluctantly, and after necessity forbade longer delay, the Legislatures of twelve States elected delegates to the federal convention. Its proceed- ings were unknown except to its members, and these were pledged to secrecy. Distrust of democ- racy defeated every effort in the convention to have its work submitted to popular vote. There was even greater distrust of the Legislatures. To insure the Constitution fair treatment, it was re- ferred to special conventions chosen by the elec- tors. The word sovereign does not occur in it, but the idea is conveyed in those general affirm- ative passages vesting supreme legislative, execu- tive, and judicial authority. The question of sov- 165 Const it ittional H/sto/y of tljc American People ereignty was discussed in the convention, though not at great length. Randolph, in opening the business before it, spoke of the jealousy of the States with regard to their sovereignty.* It may be inferred, therefore, that the claim of the three New England States to sovereignty was unwrit- ten law in all the other commonwealths. At least, no State disclaimed sovereignty. Johnson, of Connecticut, described the Virginia plan, which Randolph proposed and which ultimately devel- oped into the Constitution, as one not destroying the individuality of the States, but charged with such a tendencv. Paterson, the author of the New Jersey plan, which was a slight amendment of the old Articles, defended it because it would es- tablish a Confederation. " A Confederation," said he,t "supposes sovereignty in the members com- prising it, and sovereignty supposes equality ; if we are to be conceived as a nation, all State distinc- tions must be abolished." To this Wilson, of Pennsylvania, replied :j: that a State could as little retain its sovereignty, on becoming a member of a federal government, as a man could retain his equal- ity on becoming a member of civil government. The current of opinion in the States was hinted at by Lansing, of New York, who assured the con- vention! that his State would never have consented to send deputies if it had supposed that the delib- erations were to turn on " a consolidation of the States and a national government," which he im- * Elliot, Vol. v., p. 127. t Id., p. 176. : /^., p. 177. %Id., p. 193. 166 Conflicting Opinions as to State Sovereignty puted to be the purpose of the Virginia plan. Hamilton, his colleague, admitted the sovereignty of the States, traced to it their power over the people, and expressed his opinion that they had shown a disposition to regain the powers they had delegated to the Confederation, rather than to part with more or to give effect to those already granted.* John- son, referring to this speech, said,t a little later, that Hamilton, alone of the members of the con- vention, held these opinions. Hamilton elaborated his idea, in a prophecy, as it has proved, of the character of the national government in our day, saying that " a complete sovereignty should be giv- en to the general government such as will turn all the strong principles and passions of men on its side.":j: This led King, of Massachusetts, to say§ that the words federal, national, sovereignty, and States, had been used inaccurately in the discus- sions. The States were not sovereign in the sense contended for by some. They did not possess the peculiar features of sovereignty; they could not make war, nor peace, nor alliances, nor treaties. A union of the States was a union of the men composing them, whence a national character re- sulted to the whole. Congress could act alone without the States, and its acts would be binding against the instructions of the States. No acts of the States could vary the situation or prevent the judicial consequences. If the States, there- fore, retained some portion of their sovereignty, * Elliot, Vol. v., p. 20O. t J^d., p. 220. \ Id., p. 201. § Id., p. 212. 167 Const if lit ional History of tlje American People they had certainly divested themselves of essen- tial portions of it. If they formed a confederacy in some respects, they formed a nation in others. Martin, of Maryland, would not agree to any dim- inution of the equal sovereignty of the States, and insisted that the general government to be formed should be only to preserve the State governments, not to govern individuals.* He insisted that " the language of the States being sovereign and inde- pendent was once familiar and understood, though it seemed suddenly to have become strange and obscure."! This was said after Elbridge Gerry, of Massachusetts, had asserted that the States had never been independent, and never could be, on the principles of the Confederation. " The States, and the advocates for them," said he, " are intoxicated with the idea of their sovereignty."! Twenty-five years later, when Gerry was elected Vice-President with Madison — another triumph for " the good old republican doctrine of 98," the doctrine of the celebrated " Virginia Resolutions " of that year and of " Madison's Report " of '99 — he himself had drunk of that spirit which, in the convention, he said had intoxicated the States. Mutatis mutandis — Gerry was not alone. Ellsw^orth,of Connecticut, wished to maintain the existence and agency of the States, and to ingraft the general government upon them \\ and his idea prevailed, not so much by express provision of the Constitution as by its actual working as a political =*= Elliot, Vol. v., p. 249. t Id., p. 259. \ Id., p. 240. 168 Restricted Electorate in the Early Democracy mechanism — as in its method of choosing the President, by electors chosen by the States ; in that of choosing Senators, and of apportioning Rep- resentatives by States. " The equal vote in each State," wrote Hamilton in The Federalist* " is at once a constitutional recognition of the portion of sovereignty remaining in the individual States and an instrument for preserving that residuary sovereignty " ; and with the understanding that the residuary sovereignty of the States was unim- paired, the Constitution was ratified by a narrow majority. Popular sentiment in the rural districts and along the frontier was strong against the plan ; in the small towns it was divided ; in the commercial centres it was favorable. With only one hundred and fifty thousand voters out of a population of three millions and a half, the country presented the anomalous spectacle of a democracy in which the disqualified were in the majority, and formed the tumultuous mass along the edge of the elec- torate, with feelings hostile to restrictions on in- dividual liberty, or to any form of government, especially a new one, that was likely to multiply taxes. The right to vote was exclusively in con- trol of the States. During the twelve years since the Declaration of Independence there had been a slight extension of the franchise here and there, chiefly by act of Assembly. Whatever reforms * No. Ixii. See also Mason's remarks in the convention. Elliot, Vol. v., p. 415. 169 Const if lit ional History of the American People were desired in social or commercial conditions, long habit pointed to the Assemblies as the source of the authority, and as the paramount democ- racy that could grant them. What, it was asked, is the new government but the agent of the States ? Scarcely was it inaugurated before the old strug- gle broke out along new lines. The hated ex- ecutiv^e of colonial times was now become the United States government — new, untried, its pow- ers undefined. The Assemblies which opposed it of old were now the States — ancient as the Virmnia House of Burgesses, experienced, organized, their powers unlimited by constitutions or laws. This ail meant a political opportunity, and it was quick- ly improved. During the winter of 1797, Jefferson, then com- pleting his first year in the Vice-Presidency, was lodging at Francis's Hotel, long famed as the Indian Queen, on Fourth Street, Philadelphia. Hither, after the inaugural ceremonies in the State House, Washington and a throng of people had accompanied Adams and Jefferson. Standing on the steps of this hotel, and struggling in vain to control his feelings, Washington bade farewell to the people he had served so long and so faithfully. The hotel was the headquarters of politicians, and was much affected by Jefferson's friends. Many chapters of the political history of the country for the next half- century were here planned. The substance of many conversations is recorded in a letter by Jefferson of the 12th of February, 1798, to John Wise, a Presidential Elector from Virginia 170 Jefferson and the Toiy Party in 1793. In a letter to Jefferson, fifteen days be- fore, Wise complained that, as he had lately learn- ed, Jefferson had spoken of him " as of Tory poli- tics," and he inquired " as to the fact and the idea to be conveyed." Jefferson, " with frankness," wrote a full reply, which may be accepted as one of the earliest authoritative descriptions of political parties under the Constitution. " It is now under- stood," so runs this letter,* " that two political sects have arisen within the United States — the one believing that the executive is the branch of our government which more needs support ; the other, that, like the analogous branch in the English gov- ernment, it is already too strong for the republican parts of the Constitution; and therefore, in equiv- ocal cases, they incline to the legislative powers : the former of these are called Federalists, sometimes Aristocrats or Monocrats, and sometimes Tories, after the corresponding sect in the English govern- ment of exactly the same definition : the latter are styled Republicans, Whigs, Jacobins, Anarchists, Disorganizers, etc. ; these terms are in familiar use with most persons, and which of those of the first class I used on the occasion alluded to I do not particularly remember ; they are all well understood to persons who are for strengthening the execu- tive rather than the legislative branches of our government ; but probably I used the last of these terms, and for these reasons : both parties claim to be Federalists and Republicans, and I believe, in * Manuscript letter. 171 Constitutional History of the American People truth, as to the great mass of them, these appella- tions designate neither exclusively, and all others are slanders, except those of Whig and Tory, which alone characterize the distinguishing principles of the two sects as I have before explained them, as they have been known and named in England for more than a century, and as they are growing into daily use here." This reads as if party principles were already well understood, and party organiza- tion well under way. But Jefferson was looking into the future. Party material was abundant. It needed shaping into coherence and efficiency. All was not raw material, because Jefferson had been at work upon it since the day he entered Wash- ington's cabinet, eight years before. Every impor- tant act of Washington's administration, Jeffer- son believed, consolidated authority in the federal government, or, as he expressed it in his letter, strengthened the executive at the expense of the legislative — that is, the nation at the expense of the States. For the nation stood the Federalists — the Tories ; for the States the Republicans — Disorganizers, or, as they soon came to be called, Democrats. It was the national party against the State party. With their contests the administra- tion of the new Constitution began. The instru- ment was now to be interpreted. When Jefferson wrote this letter the new government was enter- ing its second decade. At its inception public opinion had not rallied enthusiastically about it, and Washington had found difficulty in inducing proper men to accept office. Had he refused the 172 Expanding the Principle of English Liberty Presidency, the national government might have failed for lack of men. It is difficult for us to-day to understand how feebly the sense of national responsibility and ob- ligation rested on the people of the country at the close of the eighteenth century. Indepen- dence had not been won, so thought the masses, in order to establish a costly, a powerful, a complex national government, but to secure to every per- son in the country his ancient and undoubted rights and liberties. Not satisfied with liberty, a few designing men, as Lansing had expressed it in the convention, and as many others had re- peated it in the ratifying conventions, had devised a consolidated government, dangerous alike to the States and to individuals. Were not the bills of rights and the State constitutions enough } Cer- tainly they were older and of greater authority than this Constitution lately made in Philadelphia. Englishmen had long enjoyed the right of trial by jury, the right of petition, the right of habeas corpus, and the right of exemption from unusual fines and cruel punishments. America had added to the list the right of freedom of speech, free- dom of worship, freedom of the press, exemption from unwarranted searches and seizures, and the right of representation. Any legislation, or any exercise of authority by the national government that could be construed as violating one of these rights, would at once precipitate an opposition which, if well managed, could be organized as a political party. The pop- 173 Constitutional History of the American People ular interpretation of the Declaration of Indepen- dence made it the authority for exaggerated ideas of personal liberty — tending to take the form of individualism gone mad. At the commercial cen- tres this idea was nursed in political attics, but in the rural districts and along the frontier it pos- sessed the streets. At the crest of the Allegha- nies the West was supposed to begin, but it lay as far East as Francis's Hotel. Central and Western Pennsylvania, Virginia and the Carolinas, Ohio, Kentucky, and Tennessee were the paradise of individualism. Law and order were in this vast region, but not the law and order known in Bos- ton, in New York, in Philadelphia, and in Charles- ton. This ingenious and picturesque individual- ism of the West was not crass ruffianism, for it possessed communities composed in large meas- ure of the younger sons of the best families of the older States. But in their passage into the Northwest the natives of New England, New York, Pennsylvania, Maryland, and Virginia suf- fered a political change such as came over the younger sons of Virginia and the Carolinas who had settled in Kentucky. Federalism was left behind. The conditions of Western life were not a favoring soil. There the State, not the nation, was the chief political thought. The government of the United States was far away. Had it not neglected the West ? More than this, had it not refused to let the West mana2:e its own best in- terests ? Had it not interfered, with masterly in- competency, in the Indian affairs of the South- 174 Antagonism Between the East and the IV est west, and left Tennessee unprotected against the most powerful and most brutal tribes east of the Mississippi? Matters were little better in the Northwest. There the government of the United States was commonly thought to be pursuing a policy which, if not changed, would ruin or es- trange the West. A frontiersman put Federal- ists and Indians in the same class. Others who had given more thought to the subject varied the comparison by substituting the federal policy for the Federalists, and contrasting it with that of the States — or what would be that of the States if not prevented by the federal govern- ment. By whatever path the comparison was ap- proached, it was sure to bring Western travellers to a point from which the federal government would be viewed as the aggressor. Opposition was concrete, as it were, in the West; abstract in the East. A great field for political opera- tion was, therefore, awaiting ownership. Indians and excises raised the issue in the West. In the East it was Jay's treaty and Citizen Genet; but, East and West, the masterpiece of federal of- fence was the Alien and Sedition laws. Opposi- tion to these proved the first political cement that held East and West together. When a new party is planned its projectors immediately search for a foundation in legal de- cisions and political precedents. Administrative blunders furnish campaign cries, but principles, and the interpretation of the Constitution by the courts, furnish arguments. Every party that has 175 Constitutional History of the American People arisen in America has claimed a foundation in some decision of the Supreme Court. While Jefferson and his poHtical colleagues were organizing the new party, a case reached the court involving the obscure question of sovereign- ty. In 1793 one Alexander Chisholm, a citizen of South Carolina, brought suit against the State of Georgia.* John Jay, one of the authors of The Federalist, was Chief Justice. Wilson, Blair, and Paterson, lately members of the federal conven- tion, and James Iredell, foremost in defending the Constitution in the ratifying convention of North Carolina, were Associate Justices. Randolph, the reputed author of the Virginia plan, was Attorney- General of the United States. " I acknowledge," said he, in his argument to the court, " that the States are sovereignties"; but "the limitations which the federal government is admitted to im- pose upon their powers are diminutions of sover- eignty." Chisholm's case involved two questions: Could Georgia be sued, like an individual.'^ Did the judicial power of the United States extend over the case ? Wilson, in an elaborate opinion, which Jay sup- plemented by another, gave the decision of the court. " As to the purposes of the Union," ran the decision, " Georgia is not a sovereign State." Like an individual, it could be sued, and the case fell properly within the judicial power of the United States. The Chief Justice, after giving * 2 Dallas, p. 419. 176 state Sovereignty in the Courts an elaborate review of the political history of the country from a time prior to the Revolution, con- cluded " that the sovereignty of the nation is in the people of the nation, and the residuary sover- eignty of the State in the people of each State." From these opinions Iredell dissented. He, too, traced the history of the country from an early day. The States were successors to the Crown, and inherited whatever sovereignty it once pos- sessed in the country. Like the King, they could be petitioned, but not sued. After a careful anal- ysis of the principles of the common law, he concluded: "Every State in the Union, in every instance where its sovereignty has not been dele- gated to the United States, I consider to be as completely sovereign as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of government actually surrendered; each State in the Union is sovereign as to all the powers reserved." Georgia could not be sued; the United States should dismiss the case for want of jurisdiction. Georgia accepted Iredell's as the opinion of the court. The Jeffersonians welcomed it as the true interpretation of the Constitution. On the day following the decision, Sedgwick, of Massachu- setts, in the House, moved a resolution preliminary to an amendment to the Constitution that should carry out Iredell's interpretation and protect the States. Congress took no immediate action, but the spirit of Sedgwick's resolution rapidly overspread the country. It was welcomed and encouraged by I. — M 177 Constiiutional History of the American People Jefferson and his friends. On the 5th of March, 1794, Congress submitted the eleventh amend- ment to the States, and it was in course of ratifi- cation during the next four years. On the 8th of January, 1798, just thirty-four days before Jeffer- son wrote the letter to Wise defining political parties, President Adams announced the adoption of the amendment. The doctrine of residuary sovereignty was made secure. The States had won a most important victory at the very begin- ning of their struggle with the national govern- ment. Iredell's opinion became at once the con- stitutional corner-stone in the political structure which Jefferson and thousands of his countrymen were raising. The doctrine of State sovereignty from this time had constitutional standing, and derived additional force from its interpreter. Had not Iredell been the foremost Federalist in North Carolina and dictated terms to its ratifying con- vention } Had he not been rewarded by an ap- pointment to the Supreme Court .f* But when a great constitutional question came before them he could not support high Federalism. He was an honorable man and a supporter of republican government. Refusing to follow Jay and Wilson in their abstractions, by sound legal reasoning he had dissented from them and had saved the com- monwealths. The State party was, therefore, the one true to republican principles. Let Federal- ists take warning. The liberties of the country would soon be in the hands of patriots. Though Washington's personal popularity suf- 178 Distmst of Adams's Administration fered little during his two terms as President, his administration was not popular with the country. The Alien and Sedition laws dissipated the little popularity with which Adams's administration be- gan. He and they had defenders, and among them were some of the ablest men in the country. But an unpopular law is rarely preserved by reason- ing and argument. The people in Adams's time were far more excitable, severe in criticism, and radical in character than they are to-day. Social efficiency, economic association, nearly all the amel- iorating influences which distinguish the life of the nation now were lacking then. Government in a democracy at the close of a war for independence is likely to be relatively feeble. Adams's whole policy was pilloried by the opposition as a monarch- ical attack on the liberties of the people. How- ever conservative and constructive as a national policy, it was construed as fatal to the rights of man. It, therefore, served to unite the discon- tented, those whom Jefferson styled the " Republi- cans, Whigs, Jacobins, Anarchists, Disorganizers." These awaited the skilled hand, the masterful policy of a genius for political organization; and then — farewell Adams and the Federalists. No one understood this radical, destructive, individu- alistic element better than Jefferson. He knew, probably better than Emerson did afterwards, that the State was once a private thought. On this axiom he organized a party destined to control American democracy for sixty years and to affect its course to the latest generation. 179 Constitutional Historv of tlv American People His plan was simple, effective, and popular. During the Revolution the organs of public opin- ion were partly old, partly new. The people had been familiar with town meetings, county meet- ings, and Assemblies for more than a century and a half. The Revolution brought forth the com- mittees of correspondence and public safety, the caucus and the convention. During the excite- ment over Jay's treaty and Citizen Genet the political mass -meeting came in vogue. Jeffer- son's method was cumulative. He began with in- dividuals, and, judging from the mass of his corre- spondence that remains (and he ranks among the world's voluminous letter-writers), his ideas reached every county in the Union and permeated many of them. He chose to follow the successful methods of the Revolution. A few were admit- ted into his fullest confidence. These he met at his lodgings in Philadelphia and at Monticello. Among them were Madison and Gallatin ; Levi Lincoln, of Massachusetts; Nicholas and Breckin- ridge, of Kentucky; Robert Smith, of Maryland; and Gideon Granger, of Connecticut. But his lesser friendships ran into every city and town and among men of all occupations and profes- sions. Local committees were organized, politi- cal committees were summoned, and resolutions, carefully prepared beforehand, were adopted. A favorite time for meeting in the South was on court days at the county seats when the bar as- sembled ; the resolutions could be discussed and appropriately amended, and then be sent up to 1 80 The Tories Favor Centralisation of Power the Assemblies. These must be won at any cost. Ultimately all were won. The State Legislatures secure, Congress would be compelled to respond to State sentiment. Ultimately, would not the new party gain control of the federal government itself ? Jefferson's constructive, unifying method had been in operation some nine years when the Alien and Sedition acts brought public matters to a crisis.* Scarcely less odious to him were other federal measures — the stamp tax, the house tax, the naturalization law, the law increasing the number of federal courts, and the cost of the army and navy. Did not all these prove that the American Tories were of the hated British type, and were "bent on strengthening the exec- utive rather than the legislative branches of the government?" Congress was in session till the i6th of July, 1798, and long before this time Jefferson and the few to whom he confided his most critical meas- ures had perfected a plan of campaign. As each federal measure passed, the alarm was sounded over the country, and local opposition was stirred. The Alien act, passed on the 25th of June, em- powered the President, at his discretion, to expel from the country any foreigner whom he judged "dangerous to the peace and safety of the United States," or whom he suspected to be " concerned * For the Alien acts, see Statutes at Large, Vol. i., pp. 566, 570, 577 ; for the Sedition law, ni., p. 596. Constitutional History of the American People in any treasonable or secret machinations against the government." Were not the alien enemies of the President and his party the alien friends of the opposition? Who determined citizenship? The States. What right had the President, then, to order citizens to leave the country? The law was a palpable violation of the rights of the States. This was followed, nineteen days later, by the Sedition act, which, the opposition at once said, was levelled against them and designed to per- petuate the power of the Federalists. If an American presumed to speak of either House or of the President in a way displeasing to some Federalist, he was liable to a suit for libel, to a fine of two thousand dollars, and to imprisonment for two years. Should he meet with his fellow- citizens to discuss public measures, he might be indicted for conspiracy against the government, be fined five thousand dollars, and be imprisoned five years. The truth might be given in evidence, the jury was judge of both law and fact, and the law was to cease on the 3d of March, 1801 ; but what did these matters signify save that the coun- try was fast settling towards monarchy? Certain- ly a free man had a right to tell what he thought of the government. When the States ratified the Constitution, had they not with one accord insisted on amendments, which were adopted, and of which the very first forbade Congress to pass any law abridging the freedom of speech or of the press ? The opposition felt that they were on firm ground — that the federal acts were clearly uncon- 182 The Coming of Clay stitutional. Early in August signs of public sen- timent began to appear in the newspapers. In the Kentucky Gazette, George Nicholas, soon to deliver a great speech in Congress for the repeal of the Sedition law, now published his political creed and an opinion pronouncing the law uncon- stitutional. At this time he was professor of law in the Transylvania University, was known as the intimate friend of Jefferson, had an extensive law practice throughout the Southwest, and possessed more influence in Kentucky than the whole Federal party. Public meetings in Kentucky and Virginia formulated similar sentiments. Resolu- tions, carefully planned, if not carefully drawn, were sent up to the Legislatures in such number as to appear to be the spontaneous and unanimous sentiment of the people of the two States. In both, copies of expostulatory resolutions, drawn from a high source, had been carefully distributed. Faithful hands had copied them. Safely packed, with other briefs, in the saddle-bags of trusted partisans, they found their way over the circuits and were brought home to every constituency. In Kentucky none were more influential or more active than John Breckinridge and George Nicholas. A young Virginian, Henry Clay, fresh from the law office of Chancellor Wythe, began a political career, lasting over a half century, in a speech at Lexington denouncing the unpopular acts. On the 7th of November, Breckinridge pre- sented a set of resolutions to the Kentucky Legis- lature condemning the acts. The Governor was 183 Cousiitulional History of the American People outspoken in their favor, and, on the i6th, after a week's debate — which consisted of a series of professions of poHtical faith on the part of the members rather than an argument against the acts, the rcsokitions passed.* Jefferson was the author of these resokitions. In Virsinia a similar set, written by Madison, at Jefferson's request, was presented to the Legis- lature by John Taylor on the 13th of December, and adopted eleven days later.t Verbal, and some have claimed doctrinal, differences distin- cruish these two manifestoes, known as the Ken- tucky and Virginia resolutions of '98. Whatever differences may have been found in them at a later day, they were originally intended to form a unit of political propagandism, and in that sense were the appeal of a new party to the States as sovereignties. The character of the resolutions is easily under- stood. Those of Virginia declared that its As- sembly viewed the powers of the federal govern- ment, as resulting from the compact to which the States were parties, as limited by the plain sense and intention of the Constitution, as no further valid than authorized by the grants enumerated in the compact; and that in case of a deliberate, palpa- ble, and dangerous exercise of powers not granted, the States, who were the parties to the compact, had the right and were in duty bound " to interpose for arresting the progress of the evil." The Assem- * Elliot, Vol. iv., p. 540. t Td., p. 528. 184 Federal Sovereignty Attacked bly complained that the federal government mani- fested a spirit " to enlarge its powers by forced constructions of the constitutional charter which defines them," " so as to consolidate the States by degrees into one sovereignty, the obvious ten- dency and inevitable consequence of which would be to transform the republican system of the Unit- ed States into an absolute, or at best a mixed, mon- archy." The Kentucky resolutions of '98 set forth the same doctrine of compact and of limited pow- ers of the federal government, and entered at length into a proof of the unconstitutionality of the Alien and Sedition acts as violating the express provi- sions of the constitutions and bills of rights. " The acts, unconstitutional and obnoxious," should be at once repealed. In the second Kentucky resolu- tions,* also written by Jefferson and concurred in the 22d of November, 1799, the doctrine was more clearly stated : " The States that formed the Constitution, being sovereign and indepen- dent, have the unquestionable right to judge of its infraction," and " a nullification by those sover- eignties of all unauthorized acts done under color of that instrument is the rightful remedy." In brief, the Kentucky and Virginia resolutions de- nied sovereignty to the federal government and claimed it for the commonwealths. From this claim of State sovereignty came the claim of right to nullify federal laws, and, ultimately, to secede from the Union. The idea of State sovereignty * Preston's Documents, p. 295. ■ 185 Constitutional History of the American People was now fairly launched. The Virginia resolu- tions, like those of Kentucky, pronounced the ob- noxious laws unconstitutional. But Madison em- phasized the rights of the States. His resolutions were a protest against consolidating them by de- grees into one sovereignty. The federal Consti- tution was a compact expressly defining and limit- ing the powers of the general government. The States must decide whether it had been violated at any time. Accompanying the resolutions there went an address to the people as the guardians of State sovereignty. Copies of the resolutions were sent to the executives of the other States, to be submitted to their Legislatures. By the ist of November seven States had for- mally replied.* Some defended the Alien and Sedi- tion laws. Delaware thought the Virginia resolu- tions an unjustifiable interference with the powers of the general government. Massachusetts and Ver- mont denied the right of a State Legislature to usurp the powers of the federal courts. Penn- sylvania, Maryland, the Carolinas, Georgia, and Tennessee kept silence; but the opinions of the seven States grave no welcome to the " doctrine of '98." So serious a repulse was not expected. The replies were referred to a committee of the House of Burgesses, of which Madison was chair- man, and he wrote a report which, taking up the original resolutions article by article, defended * The answers of the States are given in Elliot, Vol. iv., p. 532, etc. 186 PowerfiU Argument for State Sovereignty them, and at great length analyzed the Constitu- tion for the purpose of proving that the resolutions were in conformity with its express provisions.* Disclaiming any intention of the Legislature to diminish in any degree " mutual respect, confi- dence, and affection among the members of the Union," and pledging it "to maintain and de- fend the Constitution" and " to support the govern- ment of the United States in all measures warrant- ed by their Constitution," Madison argued that the federal government resulted from a compact to which the States were parties ; that federal pow- ers were derivative, not original ; that the term States signified the people of the particular gov- ernments, in their highest, sovereign capacity, and that in that capacity, each, acting for itself, sanc- tioned the Constitution. Therefore no tribunal above their authority existed which could decide, in the last resort, whether the compact was violated. With this idea as a principle of interpretation, he went through the Constitution, examining and expounding all its phrases bearing on the sub- ject. He cited the history of the country in refu- tation of the idea of national sovereignty. It was not granted by the Constitution ; it did not exist by the common law, because the United States had no common law. The States, on the other hand, were a permanent and necessary element. They could propose and alone could ratify amendments. In the subdivision of a State its Legislature acted * The report is given in Elliot, Vol. iv., p. 546 et seq. 187 Consfitutional History of the American People conjointly with Congress. They remained as they originated ; they were the creators of the general government. It was their agent. Therefore, the Virginia Lesfislature adhered to its resolution and continued its protest. But in this exhaustive report Madison in no way referred to nullification as the ultimate re- source of a State. To what extent it was inferen- tial would depend on what measure of residuary sovereignty one might demand for a State, and what degree of " palpable violation of the rights of a State " would be suffered. Nullification, like the idea of sovereignty, w^as left to be worked out in the practical administration of the govern- ments. The century was closing while this interpreta- tion of the doctrine of '98 was in progress. The silence of Pennsylvania, and of all the States south of it, save Delaware, was only negative testimony. But no State sent out a report on the sovereignty of the United States. Many party questions were already involved in the definition of sovereignty thus far made. National sovereignty, if clearly grasped by the leaders, was not thought of among the people. Everywhere among the people the idea prevailed, though more or less cloudy, that the general government was a common agent of the States. In democratic matters they had the right of way; over foreign matters they had ultimate control. The States were united ; the general government was thought of as a political compound — not as an organism. 188 Sixty Years of Democratic Rule The doctrine of '98 won in the election of 1800. The Democratic party was put in possession of the government. Instead of nineteen Federalists and thirteen Democrats in the Senate, there were now nineteen Democrats and thirteen Federalists. In the House the new party gained twenty-three members, and had a majority of eighteen. On the thirty-sixth ballot it chose Jefferson as President. Thus the man who made the doctrine of State sovereignty a principle in the creed of a great party was the first to be chosen to the Presidency by the House of Representatives voting as States. He wished the Kentucky and Virginia resolutions added as an amendment to the Constitution, but the addition seemed superfluous. The party that believed in them was in possession of the govern- ment, and, by their interpretation of the Consti- tution, would practically make the resolutions a twelfth amendment. Little did they dream that their lease of power should run sixty years; that during this period there was to be but one Con- gress — the twenty-sixth — in which they should not have a majority in one House. Of that Congress, their opponents should control both Houses ; but John Tyler was then to be Presi- dent. Little did they dream that, later, he, alone of all the Presidents, was to put the idea of State sovereignty to the test by adhering to Virginia when she seceded, and by becoming a member of the Confederate House of Representatives. Whether State sovereignty is a true idea is one question ; whether it prevailed in the eighteenth 189 Coustitiitioual History of the American People century is another. The triumph of the doctrine of '98 indicates the dominant political creed of the times. A new party came in with the new century. The truth and value of their doctrines could be tested only by administration. CHAPTER VII THE POLITICAL ESTATE AT THE OPENING OF THE NINETEENTH CENTURY A GOVERNMENT must be judged by the condition of the people who support it. If they are happy, prosperous, and contented, the mere form of the government is of Httle account. If their opinions, aspirations, and wants are ignored, a revolution is at hand. Some form of government will emerge from the political cataclysm, but only to be tested, like the old. We are prone to think that the American Rev- olution — with accent on the American — righted all political wrongs, and put the political estate in trust, much as we have it to-day. Was it not a triumph of the rights of man .'' Did not Great Britain long deny them ? Did we not establish free govern- ments, with laws of our own making and law- makers of our own choosing? Indeed, were not the days of the fathers better than our own ? He who knows least about the matter will doubtless answer " Yes " to all these queries. He who knows most will not regret that his lot is cast at the close of the nineteenth century rather than in the years when the fathers are supposed to have straighten- ed out the rights of man. It is written in the records of New Hampshire 191 Const it lit ional History of tlv American People how, on tlic 4th of November, 1775, its Provincial Congress adopted a resolution that delegates should be chosen by the electors, and not by the value of their estates.* This was revolution. Who in America had ever presumed to participate in the choice of delegates or select-men, or county com- missioners, w^ithout first being qualified to have an opinion because he owned a freehold estate ? The landless man was the tramp of colonial times. He was not anchored to the State. Property, not men, voted. Fifty years before the Revolution the New Hampshire Assembly had refused to allow any person to vote who was not a freeholder, owning land of the value of twenty pounds ; and any per- son coming to reside in a town in the province, unless he was a freeholder, or a native of the town, or had served his apprenticeship in it, could not be an elector until he had first obtained the consent of the select-men. t In August of the last year of the seventeenth century, he who would vote in New Hampshire was required thenceforth to own land of the value of fifty pounds sterling.^ Three years before, § in the neighboring province of Massachu- setts, he only was permitted to vote who was a church-member in full communion, a householder, twenty-four years of age, with an income yearly of * Provincial Papers, Vol. vii., p. 644. The principal authorities for this chapter are the colonial laws. t New Hampshire Laws. 1726, p. 120. Printed by B. Green, Boston. X New Hampshire Acts and Laws, Portsmouth, 1771, pp. 3,4. § Massachusetts Laws, December, 1686. Boston, 1814, p. 42. 192 Representation Regulated by Population at least ten shillings ; and this had been essentially the requirement since 1631. Time did not greatly ease the burden, for in 1692 the freeman was re- quired to be worth twenty pounds in land. Three years passed and a rude attempt at apportionment was made. Every town of forty freeholders might elect a member of the General Court, and a town having one hundred and twenty freeholders might send tw^o. Towns having fewer than forty might combine, each paying its share of the expense of maintaining a delegate ; or each town might elect and support its own.* At the time of the Revolu- tion a town having two hundred and twenty free- holders could send three delegates ; and one with a hundred more, four.t The admission of freemen, at least in New England, was a local matter, rest- ing with the towns. Rhode Island, as early as 1663, adopted the rule.lj: A century wrought a change in the method of registration. The secretary of the colony kept the roll of the inhabitants, and he who ow^ned real estate worth forty pounds, or that rented for forty shillings a year, and who had been proposed as a freeman three months before the election, might vote.§ Exception was made for a freeman's eldest son. He voted, " being the son of his father." But the lot of the freeman was not always a happy one. Connecticut, whose election laws were like those of Rhode Island, required, in 1 715, that the freeman possess a certificate, signed * Massachusetts act, confirmed August 22, 1695. t Massachusetts act of November 29, 1775. X March ist. § Act, 1762. 1.— N 193 Const it 111 ional History of the American People by the select-men, showing him to be "a person of a quiet and peaceable behavior and of civil conver- sation."* In law at least, those who, as the oath of a freeman described them, were " by the Providence of God inhabitants within this His Majesty's Colony of Connecticut," and bore a satisfactory reputation, were entitled to vote according to their conscience, " without respect of persons or favor of any man."t Strongly democratic in opinion, the people of New Hampshire, when the colony became a State, | abolished the old franchise qualifications, and, with almost unparalleled liberality, required of the voter only that he be a taxpayer, duly enrolled in a town. In this respect New Hampshire widely departed from Massachusetts, though freely adopt- ing many provisions of its constitution. Provin- cial traditions were too strong in Massachusetts to trust the political estate to any inhabitants who were not owners of real estate of the an- nual value of three pounds, or of an estate worth sixty, and who had not resided for a year in the town where they wished to vote.§ It may be said that throughout colonial times an estate worth less than forty shillings a year did not count in politics. Its owner was excluded from the list of voters. Yet there were freemen and freemen. He who * Acts and Laws, Connecticut, p. 40. New London, T. Green, !7i5- t Laws of Connecticut, 1750, p. 175. + Act of September 11, 1776. § Constitution, Massachusetts, Chap, i., Sec. 3, Art. iv. 194 Assumption of the Responsibilities of Citi{ensbip lived in the City of New York in tlie middle of the seventeenth century and was not to the man- ner born, paid a various price for his political es- tate. If he was a merchant, a trader, or a shop- keeper, he paid five pounds; if a tradesman, twenty shillings; if he had served his apprenticeship in the city, or was native born, he paid one pound. In addition, each paid sundry little fees, familiar- ly known as tips in our day — six shillings to the Mayor and six to the Recorder; seven-and-six to the clerk, and ninepence to the bell-ringer and crier, "for wild riot"; and yet some people in New England said New York was a wicked town. When the last fee was paid, the enfranchised one made solemn oath to the King, and swore obedi- ence to the Mayor and to the ministers of the city and to its franchises and customs, and prom- ised that he would contribute, to the city, tallage, lot and scot and taxes, and obey all summonses and watches, and warn the Mayor of gatherings, conventicles, and conspiracies ; and then the oath came to an end, and the men of fees disappeared and the new freeman wondered whether he had not sworn away even more than he had, includ- ing his liberty.* But it was a great privilege to be a freeman, what with the taxes and the con- spiracies and the lot and scot and the fees. They would not have to be paid again. And this was about a dozen years before the great Declaration * Laws, Statutes, Ordinances, etc., of the City of New York. John Holt, 1763, p. 23. 195 Constitutional History of tljc American People and " life, liberty, and the pursuit of happiness." Just sixteen years after these things, and when the State of New York was a year old, there was a reform. Henceforth every man in possession of land in right of his wife might vote — though she could not. And if he would vote for Senator or Assemblyman, he must vote in his own district, and viva voce, but by ballot if he voted for Gov- ernor or Lieutenant-Governor.* With what pride he "abjured the Crown" in the new oath, and swore allegiance to " the free and independent State " of New York.t Was not this ample com- pensation for additional taxes ? Before the century closed New York was di- vided into four great districts,^ and Senate and House were all nicely apportioned and all the new counties in the western part of the State were clamoring for a reapportionment. But the four divisions — Southern, Middle, Eastern, and Western — were the four continents of the new political world, and the sea of change must not be suffered to wash them away. The spirit of de- mocracy was abroad and insisted in participating in the reform of representation. When, in 1801, the Assembly yielded to public clamor and called a convention, the election of delegates was to last three days, and " all free male citizens twenty- one years old " might vote.§ This, too, was revo- lution, for by the constitution of the State no man * Act of March 27, 1778. t Act of March 26, 1781. t By the constitution of 1776; also see act of March 4, 1796. § Act of April 6, 1 801. 196 High Standard of Political Qualifications could vote save he who possessed a freehold of the value of twenty pounds, or rented a tenement worth forty shillings a year, or who, in Albany or New York, had been admitted a freeman. In New Jersey the political estate was more difficult to acquire. There the freeholder had long been required to own one hundred acres of land, or real and personal property of the value of fifty pounds,* and this continued to be the require- ment when the colony became a commonwealth.! By the constitution of 1776 a duly qualified inhabi- tant might vote, and straightway women, aliens, and free negroes having the requisite property voted — in five counties — by ballot. Members of the Legislative Council, Assemblymen, sheriffs, and coroners were first nominated to the clerk of the court, in writing or personally, by the electors. The nomination list was advertised for two weeks before the election, when the final choice was made by the ballots of the electors.^ In Pennsylvania, in the seventeenth century, the political estate was in the exclusive keep- ing of the freeholders.! An estate of fifty acres was equivalent to one of fifty pounds. A taxable was a voter, but not all taxables were voters, for the franchise was granted only to free white males. Just as the eighteenth century was clos- ing, the democratic spirit gained strength enough in the State to require only manhood suffrage — * Acts of April 4, 1709; December 16, 1783. t See Constitution, 1776. \ Act of February 22, 1797. § 4 Annae, 1705. 197 Const if iiiional Historv of fbe American People the voter paying a State or county tax, or if voting on age — that is, for the first time — no previous tax was required.* Delaware was long a part of Penn's province, and its early laws closely resem- ble those of Pennsylvania.! So, too, did the laws of Maryland. But in Maryland fifty acres of land and property of the value of at least thirty pounds were equivalents. | The freeman who possessed cither had part in the political estate. No province began on a more liberal theory than Virginia. At first all freemen voted, but a few years' experience led to limitations. The voter must be a freeman, § a householder, as in Massachusetts — and a freeholder, as was common in New England. Moreover he had to make oath that he was a freeholder. In the year when Pennsylvania exacted a suffrage qualification of fifty acres of land,|| Virginia required the elector to own " real estate for his own or another's life, or in fee," but did not fix the amount. Women, infants, and popish recusants were excluded from the electorate b}^ the law of 1699, the earliest on the subject in this country. Thirty years' trial of the law requiring the voter to be a freeholder led to the act of 1736, fixing the amount at one hun- dred acres, or twenty-five acres " with house and plantation in his possession." If the estate lay in two counties, the owner voted where the greater part lay. The requirement was too heavy, and in * February 15, 1799. t Delaware, act of 1741. I Constitution, 1776. § Acts of 1654-55-66. II 1705. 198 The Ballot in North Carolina 1762 was cut down to fifty acres, " unsettled," or twent3''-five having a house twelve feet square. The act of 1 769 excluded women and free negroes from the suffrage. War compelled taxation. A poll-tax, in kind, was imposed in 1781 — a half-bushel of wheat, or five pecks of oats, or two pounds of sound bacon; but later in the year the tax was fixed at ten shillings. Election by ballot was established by the North Carolina Assembly in 1743, and the political es- tate was given into the keeping of freeholders pos- sessing each fifty acres of land and three months inhabitants of the county and six months of the province. The constitution of 1776 lengthened the time in the county to six months and in the State to twelve. A free male person thus quali- fied could vote for Senator. One paying " public taxes" could vote for a member of the House of Commons. Thus, free negroes possessed the con- stitutional right to vote.* In 1 72 1 South Carolina gave the right to vote to free whites professing the Christian religion, who resided one year in the province, and owned fifty acres of land, or paid a tax of twenty shillings. Sixty years before the Revolution the right to vote was given to free white men who had resided six months in the province, who were worth realty to the value of thirty pounds, current money, and who professed the Christian religion.! Ten years * For a discussion of this point, see debates in North Carolina Constitutional Convention, 1835. t Act of December 15, 1716. 199 Const it 111 ioual H/sfory of ibc American People Liter the requirement was changed to fifty acres of land or the payment of taxes on a fifty-pound valuation ; the religious qualification was as before. In 1745 the property qualification was raised to a freehold estate in a settled plantation, or three hundred acres of unsettled land, or taxed property worth sixty pounds.* Fourteen years later the al- ternative was allowed — an estate of sixty pounds in houses, or a tax of ten shillings.! This was the law when the province became a State. Its first constitution omitted to prescribe qualifications for the elector. In its second, 1778, he was de- fined as a free white man, and no other, who ac- knowledged the being of a God, believed in a future state of rewards and punishments, who had attained the age of twenty-one years, had resided in the State a year before the election, possessed a freehold estate of fifty acres or a town lot for six months at least before the polls, or had paid a tax equal to the tax on fifty acres. The third con- stitution, 1790, modified the alternative to a tax of three shillings sterling. The qualification at the opening of the nineteenth century was, there- fore, but Httle changed from that under the act of 1721. Georgia, the last of the colonies, was founded as the poor man's paradise. A white man worth ten pounds and a taxpayer, or "of any mechanic trade," could vote, by the constitution of 1777. The con- stitution of 1789 — with great liberality for the age * May 25, 1745. t April 7, 1759. Aristocratic Democracy in Virginia — required only the payment of taxes and a resi- dence of six months in the county. Kentucky, making both her constitutions almost at the close of the century, and free from colonial traditions, made the qualifications of the elector liberal. A free white man who had resided in the State two years, or for one year in the county in which he offered to vote, was an elector by the first con- stitution — and also by the second, which special- ly excluded negroes, mulattoes, and Indians. In Tennessee — or, as it was originally called, Wash- ington County, or District — the laws of North Carolina in force in 1795, when the new State was organized, were formally readopted with few exceptions.* The elector was, therefore, required to be a freeman and a freeholder, and for six months an inhabitant of the count}^ in which he sought to vote. North Carolina traditions influ- enced Tennessee. Virginia traditions in Ken- tucky were not suffered to encumber the political estate. The new West was essentially democratic, as the first constitutions of Kentucky and Ten- nessee attest. But their democracy must be meas- ured by the aristocracy that had so, long prevailed in Virginia, the Carolinas, and Georgia, and not by the democracy that developed in the country after 1800. In no State was democracy further advanced than in Vermont. There the political estate was committed to freemen who had resided in the * Scott's Laws, 2 vols., Knoxville, 1821. 201 Constitutional History of the American People State one year, and who would take the oath to vote conscientiously and without fear or favor of any man.* This was manhood suffrage, the most liberal that had been granted in America thus far. The liberal States of the eighteenth century were New Hampshire and Vermont in the North and Georgia in the South. But there were other tests required of those whom the Revolution put in the place of the King. Not merely by the possession of property, nor by residence, nor because of age and racial advantage, were men made trustees of the political estate. A religious qualification was required. This, too, was a survival. For a century and a half, "being in church fellowship " had meant in Massachusetts membership in the Congregational Church. The Church of England was established in South Car- olina by act of Assembly at the opening of the eighteenth century,! and its second constitution — 1778 — while granting religious toleration, declared "the Christian Protestant relisfion " to be the established reliii^ion of the State. Connecticut and New Hampshire resembled Massachusetts in their provisions respecting church -membership as a political qualification ; Virginia resembled South Carolina. But resemblance is not identity. In other States religious sects abounded and multi- plied till public opinion resembled that which ruled in the federal convention when the qualifi- * See Constitution, 1777. + See acts of November 4, 1704; December 18, 1708; April 8, 1 7 10. 202 Disappearance of the Religious Qualifications cations for office were under consideration ; no religious qualification could be adopted that would please all the States ; therefore all were abandoned. South Carolina, in its third constitution — 1790 — abandoned its State religion, and granted freedom of worship to all sects whose practices were not inconsistent with the peace or safety of the State. The religious qualifications, so strong in some colonies for a time, in as far as they affected the voter, may be said to disappear with the abandon- ment of the first South Carolina constitution in 1790. The constitution of Massachusetts did not require church - membership. For a time public opinion did, but this encumbrance on the political estate may be said to have been fully satisfied be- fore 1820.* The office -holding class was not ex- empted so early. Governors and legislators must give security, and none other was thought equal to the property and religious qualifications. No man known to be irreligious could have been chosen Governor of Rhode Island or Connecticut in colonial times. In public opinion this was an un- written qualification. Had the office been elec- tive in other colonies, probably the result would have been similar. The colonial period was one during which property, integrity, and religion were inseparable in the public mind. It may be said now that church-membership is no longer conclu- sive evidence of probity or integrity. A man is * Amendment, Art. vii. (proposed by constitutional convention, 1820; ratified April 9, 1821). See also Amendment, Art. xi., rati- fied November 1 1, 1833. 20.-^ Const it uiioual History of the Aincrican People not defeated at the polls, as he would have been during the greater part of the eighteenth century, simply because he is not a church- member. Is it not fair to conclude that the people of that time had no other equally good test? Or, at least, that they thought so ? In 1705 — and the law was re-enacted thirty-six years later in Delaware — a member of Assembly in Pennsylvania was required to profess faith in the Trinity and the inspiration of the Scriptures. It was proposed to incorporate the same oath in the con- stitution of the State in 1776, and to have it apply to the electors and all of^cials. Franklin, the president of the convention, succeeded in limiting the oath to members of Assembly and in modify- ing it merely to a declaration of belief in God, the inspiration of the Scriptures, and a future state of rewards and punishments. The change in public opinion respecting requirements of this kind is re- corded in the constitution of the State, of 1790, in which the old provision barely survives in negative form, that no person who acknowledges the being of a God and a future state of rewards and punish- ments shall, on account of his religious sentiments, be disqualified to hold ofifice in the State. And this provision is repeated in the constitutions of 1838 and 1873. In 1704, the year before the Penn- sylvania act, the South Carolina Assembly had passed one of stricter ecclesiastical tenure. Mem- bers of Assembly who, within twelve months, had not received the sacrament, were required to take it according to the Church of England; and, in 204 Exclusion from Office for Religious Belief open Assembly, to deliver proper certificate to the fact, signed by the minister, or to prove the fact by two witnesses on oath. It is not strange that the first constitution of the State, seventy -two years later, should contain some survival of a public opinion that could dictate such a law. The New England States, New Jersey, and North Carolina, either by law or in their constitutions, limited office- holding to Protestants.* In North Carolina the qualification at last led to the calling of the con- vention of 1835 to modify the phrase. Jews were practically excluded from public office everywhere, and Roman Catholics also, except in New York and Maryland. These sects were not numerous in the country in the eighteenth century, but they ex- isted in numbers sufficient to prove a powerful accessory to the political party that should first declare for reforms in the franchise. They were joined, of course, by that increasing number of non - church people who considered all religious qualifications a violation of human rights. In 1800 there were one hundred and eight thou- sand free persons of color, and eight hundred and ninety thousand slaves. The slaves counted as five hundred and thirty -five thousand persons in the apportionment of representation in Congress. The free negroes were in an anomalous condition, and were politically a people without a country. * By the constitution of 1780 the candidate for Governor of Massachusetts was required to be worth ^1000 and "to declare himself to be of the Christian religion." The religious test was abolished in 1821, and the property qualification in 1892. 205 Conslitittioual H/sfory of the American People In ten years their number had nearly doubled. Of their number, in the aggregate, during colonial times, there is no reliable record, but the record of their relations to society is ample and mournfully uniform. Negro emancipation had never been encouraged in the colonies. The young and the old could not be emancipated,* and, usually, he who set a negro free was required to give a heavy bondf to provide against his becoming a charge on the public. | The freedman was hedged about by limitations. His certificate of emancipation must be recorded, and without it he could not safely travel within the county in which he lived,! nor leav^e it save at peril of being sold into slavery. § He could not be a witness against a white man.|| If he neg- lected to work, he and his children could be bound out to labor.§ In Virginia, until the constitution of 1776, no negro could be set free unless for mer- itorious service,]! and then only with the consent of the Governor and Council. On training-days and at musters, the free negro, in Massachusetts** * Those sound, from twenty -one to forty years old; act of New Jersey, March 14, 1798. In Maryland, not if above fifty years of age ; act of June 23, 1752. t New Jersey, act of March 14, 1798. X Virginia, 1691 ; emancipator to pay for his transportation out of the colony. p New Jersey, act xii., George I., 1725. II Maryland, acts of June 8,. 171 7; December 31, 1796. T^ In Virginia, in 1779, a negro, Kitt, obtained his liberty for dis- covering a gang of counterfeiters. The State bought him for ^1000 and set him free. =•'* Massachusetts, act of 1699; confirmed, May 28, 1707. 206 Forerunners of Negro Emancipation and Virginia* alike, must appear, without weapons, and do whatever menial service was required of him. He mio^ht be allowed to serve as drummer or trumpeter, but usually he was found about the officers' quarters at servile labor. An act of the Virginia Assembly of 1777 emancipated a negro woman and her child whom one Barr had emanci- pated by will, with which the royal Governor had refused to concur ; but the act concluded in the usual form — " not to be construed as a precedent." Every precaution was taken to prevent the social meeting of free negroes and slaves. North Caro- lina explicitly forbade it " on Sunday, or between sunset and sunrise."! For the first offence the penalty was twenty shillings, and twice the amount for every subsequent one. South Carolina and New York were in contrast in their dealing with the sub- ject. New York was friendly to emancipation, pro- vided proper bond was given; and in 1792 empow- ered the State treasurer to pay to the overseers of the poor in various towns money sufficient to sup- port manumitted slaves who had become a public charge. Vermont was the first State to apply the doctrine of human equality to negroes, its law de- claring, tersely, that " the idea of slavery is express- ly and totally exploded from our free government."^ The constitutions of the eighteenth century are silent respecting free persons of color. They were not included in the political estate. Virginia and Maryland had each twenty thousand ; Pennsylvania, * Virginia, 1755. t North Carolina, 1727. + Vermont, 1787. 207 Constitutional History of the American People fourteen thousand ; New York, ten thousand ; Del- aware, eight thousand ; Massachusetts and North CaroHna, about seven thousand each ; Connecticut, five thousand ; New Jersey, four thousand ; Rhode Island and South Carolina, each three thousand ; Georgia, one thousand ; New Hampshire, eight hundred ; Kentucky, seven hundred ; Vermont, five hundred ; Tennessee, three hundred ; about five hundred were living north of the Ohio ; eight hun- dred in the district of Maine; and less than two hun- dred in what was soon to be known as Mississippi. Whether in New England, the Middle States, or the South, the free negro found every man's hand against him. In New Jersey and North Carolina the constitution did not forbid his vot- ing, but public opinion was an unwritten consti- tution. He was an outcast; overlooked by the tax-gatherers, refused admission to the schools, de- nied entrance to the trades, dwelling on the thorny edge of village life, doctored by charity, watched by a slave -holding democracy, rejected from the society of the white race and forbidden to mingle freely with his own. Yet the function he served was a sort of political metaphor. How could slavery be the African's " natural and normal con- dition," and there be free persons of color.? At the opening of the nineteenth century more than a hundred thousand persons were embodiments of the paradox. Would the time ever come when they would form a part of the political estate 1 If any commonwealth chose to admit them to citizen- ship, what effect would it have on interstate re- 208 stern Functions of the State lations ? What interpretation would be put on the words of the national Constitution, that " The citi- zens of each State shall be entitled to all privileges and immunities of citizens in the several States "? What conflict was latent in the fact and the con- dition of free negroes ? American democracy, at the opening of the nineteenth century, gave lit- tle sign that it was conscious of the impending changes in the political estate which were to be effected in recognition of the rights of free persons of color. As yet no political party intimated that such persons had rights which democracy was bound to respect. From this brief survey of one aspect of the political estate at the opening of the new century, it appears that government, in American democ- racy, was at this time in the hands of the few who were conventionally restrained from political wrong -doing by social, religious, and property qualifications. The mass of the population was excluded from the estate. Yet few escaped taxa- tion. The value of property, not the votes of elec- tors, controlled the democracy of the day. Prop- erty was the electoral check and balance. What did the State do for the people } It is easier to tell what it did not do. It did not give them free schools, free hospitals, or free asylums. Its penal code was punitive, not remedial, save in Pennsylvania. Commerce, trade, and transpor- tation were monopolized by individuals, and, as yet, competition but slightly benefited the public. The poor-house was the common receptacle for I. — o 209 Const H lit ional History of the American People the insane, the imbecile, the orphan child, and the aged and decrepit pauper. Government of this kind fostered streaks of class and petty social distinctions. The landless, the laboring class, the mechanics, and the young apprentices were at the bottom ; the landholders, the well-born, the merchants, the doctors, the min- isters were high in the scale. The new wine of democracy was flowing over the country and a counter-revolution was at hand. Who was to gather together the masses and consolidate the disaffected into a powerful party.? Who would advocate the extension of the suffrage, the aboli- tion of property and religious tests .'^ How long before democracy, the masses, would be demand- ing a share in the political estate } Thus, as the new century opened, though the power of property was in the saddle, the democ- racy of men was at hand. Unless America should be a government of men, the theories of the eighteenth century would have to be aban- doned, and the new governments, in nation and commonwealth, would fail for lack of men. If all men were created equal, then the mass of provincial legislation which the commonwealths inherited must be in large measure discarded. New laws, consistent with the dominant ideas of democracy, must be made. The resolution of the New Hampshire Congress, eight months be- fore the Declaration of Independence was written, was a hint of the way men were going and of im- pending changes in the organization of society. 2IO CHAPTER VIII THE FIRST MIGRATION WEST Among the fireside stories of the old Northwest none is more frequently told than that of General Wayne's victory over the Indians at Maumee,* his treaty with them at Greenville,! and how the de- feated savages were forced to give up their lands to the whites. From that day the Western coun- try could be travelled in safety, and immigrants could take up lands. For nearly a century and a half England and France had struggled for this region, and their struggle came to a strange end- ing. The brooding mind of Pontiac, " King and lord of all the Northwest," had conceived the ter- rible plot, only twenty-two years before, to drive the English over the Alleghany Mountains, and destroy every white person found west of Chau- tauqua Lake. Traditions of Pontiac's conspiracy still linger in the Northwest. From the day of Wayne's victory Indian at- tacks were no longer feared in Western Pennsyl- * August 20, 1794. t The treaty at Greenville, August 3, 1795, opened to settle- ment the country from Cleveland westward and southwestward, within the "Wilderness Road " shown on the map of the United States, 1796. See Map opposite p. 158. Const if iifioihil History of tlw American Teople vania and in Eastern Ohio. Beyond Fort Wayne the country was infested by hostile tribes, and other victories must be won before it could be open to settlement. Wayne's victory was speedily followed by the settlement of the lake shore from Black Rock to Detroit. Western New York and the greater part of the Triangle in Pennsylvania were claimed by the Holland Land Company. Speculation in land was one of the chief vices of the time. Individuals and companies expected to reap fabulous wealth from the rise in land values. Before the eighteenth century closed every acre of land which Wayne's victory had brought within reach of immigration was entered in some scheme of speculation. Of the best of these companies the Harrisburg and Presque Isle was a type. It was formed on the 13th of August, 1796,* by ten men, who, under a written compact styled a constitution, agreed to pay, severally, the sum of two hundred pounds, as common stock, to be expended " in the purchase of in and out lots in the towns of Erie and others, and of lands in the State of Pennsylvania, north and west of the Ohio and Alleghany rivers." The purchases were at Erie. Waterford, and Franklin. In Erie the com- pany paid from three to eighteen dollars for lots on Holland, German, State, French, and Parade streets, below Seventh ; for the corner lot at Second and German, and for the opposite corner, " on the road to the Fort," two hundred and sixty * See Forster's Manuscript Letter -book for account of this company. 212 The united States IN 1800 SHOWING CIVIL DIVISIONS i^AND DISTRIBUTION OF POPULATION Transportafion in the New West dollars each. For five -acre out -lots the price ranged from thirty -three to sixty -nine dollars. Fifty-five dollars were paid at Franklin for an in- lot at the mouth of the French Creek, and from fifteen to fifty-nine dollars for in-lots at Waterford, which, at this time, promised to be at the head of navigation in this part of the Ohio Valley. A portage to Erie, fifteen miles to the north, would make the great lakes and the Ohio a commercial highway. Washington had a similar dream of uniting them by a canal from Chautauqua Lake to Lake Erie. The company originated at Harrisburg, and rated its shares at fifty dollars each. Profits were expected from sales of lands incident to immigra- tion, also from a grist-mill which the company pro- ceeded to erect at Erie. Milling supplies were hauled by wagon from Harrisburg. The road was fairly passable as far as Pittsburgh, but from that point to Erie was for long distances scarcely more than a bridle-path. In summer, at low-water, much of the journey could be made over the bed of the French Creek. The journey from Harrisburg con- sumed nearly four months. Three other " population companies " were specu- lating at this time in Pennsylvania lands; Aaron Burr, with others, had devised the Pennsylvania Company, received a charter from the Legislature in 1793, and purchased land -warrants covering nearly the entire Triangle. To encourage immigra- tion, this company offered to give one hundred acres to each of the twenty families that should 213 Coiisfititlioihil History of the American People first settle " on Lake Eric territory." The settler was to clear ten acres, erect a comfortable dwelling- house, and live in it two years — " unless driven off by Indians." The time during which the Indians might drive him into involuntary exile was not to be counted against him, and his heirs were privileged to continue his claim. Two streams of population were at this time converging at Erie — one from Pennsylvania, Dauphin County, chiefly; the other from New England, and, principally, Connecticut and Eastern New York. The Pennsylvania stream was rein- forced in Alleghany and Westmoreland counties, and consisted chiefly of people of Scotch -Irish stock. The New England migration was of Eng- lish stock. Nearly all were farmers, and, as was often the case, neglected, or were unable to se- cure, good land-titles. Some held from one com- pany, some from another ; some from individuals ; and many had title only by possession. The first crop was, therefore, one of lawsuits. A test case at last reached the Supreme Court, and John Marshall sustained the claims of the Holland Land Company.* In consequence, many pioneers were forced to pay for their land again or lose it. Some preferred to abandon their claim and take up cheap government land in Ohio. Others, at great sacrifice, paid the second time. They "went sailing on the lakes"; they made pearlash ; they * See Huidekoper's Lessee vs. Douglass, 3 Cranch, pp. 3-73 ; the case gives much information regarding the condition of the Chautauqua country from 1792 to 1800. 214 Unsettled Condition in the Chautauqua Countiy raised a few " extra head " of cattle ; they hired out their labor. The evil reputation which the Triangle got among immigrants from the East, on their way to the Ohio country, helped some Pennsylvania farmers who were struggling to pay ao:ain. Farm-houses were converted into tem- porary inns, and, by entertainment of man and beast, the owners gathered a little silver money,* Similar were the difificulties in Western New York ; but for these the settlers themselves were chiefly to blame. Many relied on mere possession to give title. Some claimed under bargains with the Indians. Some had bought of the Holland Company and defaulted payment. News, more or less exaggerated, of cheap lands in the West kept the Chautauqua country in unrest, and was made an excuse for unsettled payments. Not until 1835 were the disputes ended — when William H. Sew- ard, then a young lawyer from Albany, appeared at Westfield as the agent of the Holland Company.! By judicious compromises he secured title for the farmers, quieted the angry spirit of the region, and by his integrity and administrative skill laid the foundation of his popularity in Western New York. His pacific settlement of the land troubles contributed largely to his election as Governor of * My knowledge of early life along the Lake Shore from Buf- falo to Cleveland has been principally derived from information contained in the letters of early settlers, from conversations with many of them, from the Forster manuscripts, and from early newspapers, especially the Buffalo Gazette. t His land-office, a low, one-story brick building, was standing in 1885. 215 Const it III ioual History of the American People the State in the following year. It was this elec- tion that opened the way to a national career. In 1799 the Northwest was erected into a rev- enue district, with Presque Isle as the port of en- try. Adams appointed Thomas Forster collector, and he held the office for thirty-eight years — the longest service of the kind in our history. The first entry was an open boat, called the Sche7iectady^ with a cargo valued at $81 1.85. Its invoice shows the demands of the country in 1801.* There were muslins, and cotton shawls at $3.75 apiece; green cloth and blue at $3 a yard ; elastic stripe at $1.25 ; spotted kerseymere of American manufacture at $1.40 per yard; men's stockings at $1 a pair; worsted caps for men and women at 25 cents each ; watch-chains at 34 cents, and watch-keys at 15 cents; two dozen crooked combs at $1 each; penknives at $1.50; tin snuff-boxes at 5 cents; glass pendalls at 34 cents; bridle-bits at 54 cents; golosh shoes at $2.25; almanacs; pistols at $7; weaving-reeds; and needles at $2 a thousand. The Prince brought puncheons of spirits, bags of cocoa, and hogsheads of molasses ; the Nep- tune^ chests of hyson ; the Tulip, silk shoes and china-ware ; the Dauphin, claret, spermaceti can- dles, cases of jewelry and plated ware, and bandana handkerchiefs ; the Wilkinson, bound for Detroit, carried cannon, shot, wine, muster-rolls, candles, and carriages. But the goods entered at the port were a small part of the merchandise imported * Custom-house records, Erie, Pennsylvania. 216 Smuggling Tendencies of Some Early Pioneers into the country. Every large creek along the south shore of Lake Erie concealed smugglers. The collector was distracted by conflicting re- ports. Some one had seen a coat made of broad- cloth on the back of a man from Ashtabula; another had seen lights at the mouth of the Twelve-mile Creek ; a third had seen new goods exposed for sale at Freeport ; a fourth had seen the sloop Good Intent off shore, and Master Lee, as everybody knew, was a bold smuggler.* Jefferson's policy of non - intercourse was not successful or popular in the Northwest, Smug- gling increased daily. In vain did Gallatin com- plain and Forster report. Not a vessel could leave Presque Isle " without the special permis- sion of the President." Gallatin instructed For- ster that while temptation to import every species of merchandise contrary to law might exist, the collector would only have to encounter " the com- mon acts of smuggling, and not the interests and prejudices of the community." Gallatin lit- tle understood the pioneers along the great lakes. Smuggling might be an offence, but certainly not a crime. They thought themselves entitled to the privilege of purchasing goods at the lowest possible price. The United States government was a thousand miles away. At this time the settlers living in Westfield were compelled to go to Canada to have their * Custom-house records, Erie, Pennsylvania. Also Forster's letters. 217 Constitutional History of tiie American People grain ground, and the farmers in Eric County went to Pittsburgh. Money was so scarce as to be a curiosity. Settlers were coming in daily. They had been three months on the way from New England; they had come in ox -carts. At night they had stopped with some of the num- erous tavern-keepers along the way, paying six- teen pence for lodging and the use of the fire- place — for they brought their food and cooking utensils with them. When the immigrant had located his claim, he at once began underbrush- ing and logging. His house was of logs saddled and notched; the roof of bark, kept down by weight-poles. The square chimney of sticks, cob- laid, was plastered on the inside with mud mixed with chopped straw. The " door-cheeks " were puncheons, and the door swung on wooden pins. Many cabins had only blanket doors. The win- dows were of paper, or, in rare instances, of panes of glass four by six inches. The bedstead was of poles ; the table was the blue chest brought from New England. A few teacups, saucers, wooden or pewter plates, an iron pot, a spider, a bake-kettle, a cotton or tallow dip, or a turnip lamp ; a rude shelf supporting the Bible, a copy of Allen's Alarm, or The Pilgrims Progress, or Baxter's Saint's Rest; a gun across two pegs; skins stitched and tacked to the logs ; a few three-legged stools and a gourd dipper, com- pleted the furniture. Near the house a similar building sheltered a cow, a yoke of oxen, and a litter of pigs. 218 The Cradle of Our Industries With the heaps of glowing ashes the pioneer paid for his land. The first patent granted by the United States was for an improvement in the manufacture of pearlash. At first the black salts brought only two or three cents a pound ; but the price advanced until 1825, when above five hun- dred tons were shipped from Westfield, and more than forty-five thousand dollars were paid to the farmers of Chautauqua County. The early settlers had not even hand-mills, but were compelled to extemporize a substitute — as a spring pole, with a suspended stone or cannon-ball, and the concave surface of a hickory stump. The loom was soon set up, for the flax had been sown. The entire manufacture of cloth and clothing for the household was done by the women. Linen sheets, counterpanes, and hand- kerchiefs were woven in white and blue. As soon as the farm was stocked with sheep, woollen goods were woven, and men and boys wore but- ternut suits of linsey-woolsey. While working in the clearing or in the field the men sometimes wore leather breeches, and a common clause in the early wills of the region is the devise of the father's leathern clothes to his eldest son. From an early day the teachings of Calvin gave character to the people in the scattered settle- ments of Upper Buffalo, Conewango, Chartiers, Meadville, Erie, and Cleveland. The Presbyterian faith prevailed. The early ministers were cir- cuit-riders. New England licentiates, and preach- ers duly ordained. They came chiefly from Con- 219 Constitutional History of tljc American People necticut or central Pennsylvania, and many were bred in the divinity school at Yale. A sinc^le sermon fed the entire circuit, which extended from Albany to Cleveland, from Presque Isle to Pitts- burgh. Armed with his Bible and his rifle, the preacher traversed the wilderness and passed his years in a life of rude romance. Overtaken by night and storm, he stopped at some friendly cabin, or, turn- ing his horse loose, slept for safety in the crotch of a tree. He shared the rough life of the times. The news of the world travelled with him, and his saddle - bags contained the closely written and firmly sealed letter from the mother in the East to her children in the West. With day's labor the pioneers had built the meeting-house of logs and bark and puncheons. The seats were logs, the pulpit the stump of a tree. The house had neither fireplace nor stove. On the day ap- pointed for service, people came with provisions to last a week. Fires were kindled, kettles were swung, food was unpacked, rude tables were spread, the hum of voices and the shouts of new arrivals filled the air. The lonely meeting-house suddenly became the centre of a camp -meeting. The preacher arrived in company with one of the elders, at whose house he had spent the night. After many greetings and inquiries, the service began out-of-doors, for the meeting-house was too small to hold the people. At the sound of the conch - shell, order and silence reigned, and the preacher began by lining a psalm from Rowe's Itinerant Teachers of Christianity version. The melody was a minor rondo or a familiar Scotch tune. Oftentimes the only hymn- book was the minister's memory. The prayer was a sermon in itself; the sermon would make a book. All the way from Connecticut the sermon had been gathering length and strength. It abounded in exciting personal experiences, thrilling illustra- tions, and fearful warnings. On the fourth day the communion-tables were prepared, the seven deadly sins were reviewed, the tables were "fenced," and the leaden tokens were distributed to communicants. The sacra- ment was solemnly observed. With a wondering look, the Indian, hidden from view, beheld a strange sight in his native woods. About the opening of the second decade of the century a few Methodist preachers ventured into the land ; but they were suspected of heresy and were unwelcome. The severe Presbyterian held such itinerants as Lorenzo Dow in horror, and classed the British, the Indians, and the Methodists together. The first stores in the country would now have the interest of a museum. Into one place were gathered for trade and for barter dry - goods and wafers, dyestuffs and sand, boxes, quills, and hardware, drugs and medicines, boots and shoes — which were neither rights nor lefts — molasses and whiskey; loaf-sugar at three shillings a pound, hyson -skin tea at fourteen, pins at two-and-six the paper, powder at eight shillings a pound and shot at two, unbleached cotton at fifty-five pence Const H 111 ioiial Histoiy of the American People the yard, satinet at twenty- seven and sixpence, maccoboy snuff at eight shilHngs a pound, coffee at five, writing-paper at four shilHngs a quire, whiskey at twelve shillings a gallon, Webster's spelling-books at three shillings each, ginger at six shillings a pound, flour at eighteen dollars a bar- rel, salt at twenty-two — and Colonel Forster might tell the purchaser that, during the six years clos- ing with 1805, to Erie City alone fifteen thousand barrels had been brought from Salina, first by wagon to Black Rock and thence by the lake. Cheese stood at two cents a pound, butter at seven, pork at two, wheat at three shillings a bushel and oats at one, calico at six-and-six the yard, and broadcloth at ten dollars. Shoemakers, tailoresses, school - masters, pack- peddlers, and doctors comprised almost the whole of the travelling population. The doctor had learned his art in a practitioner's office " down East." Patients were bled, purged, and buried. A favorite prescription of Dr. Prendergast* was " 2 oz. val. sylv. and caskarel t and epispastic," for which the patient or his estate paid one pound four shillinsfs. The fever -stricken were denied O water, but fed bounteously with calomel ; the win- dows in the sick-room were carefully sealed, in order to prevent draughts. Frequent epidemics of small-pox or typhus overran the country. The school-master was an incipient preacher or physician. In the hollow square of the school- * Of Fredonia, New York. f Probably castor-oil. Limited Curriculum of the Village School room there raged a perpetual battle between the " master " and the larger boys. The windows were of larded paper, and the puncheon seats kept the children's feet just off the floor. Daball's arith- metic, Webster's spelling-book, the English reader, and quill-pen copies constituted the material for the curriculum. Educational literature did not exist. Seldom were two scholars in the same book or at the same lesson ; children were sent to school to learn to read, to write, and to do sums. Schools were maintained by a rate-bill, which might be diminished by boarding the teacher. In the evening he was expected to help the children at their sums, to amuse the household, and, later, to sleep in a frosty bed. The century was six years old before a court was held in Erie. Judge Yates, as was the custom among members of the State Supreme Court at that time, travelled over the circuit on horseback. In Chautauqua County the foreman and the secretary of the grand jury paid each a bottle of brandy for the honor of his seat. Taverns were thickly sprinkled over the principal roads, and tavern -keeping was the most profitable business in the country. Strange stories are told about some of these taverns, and the tragedy at Button's Inn has gone into literature. Erie was made a post-oiTfice town in 1798, and the quarterly returns for April, 1805, were sixteen dollars and twenty -eight cents. Between New Amsterdam (now Buffalo) and Erie the road was almost impassable, and the mail, at regular inter- 223 Constitutional History of the American Teople vals, was carried in a handkerchief by a horse- man. Two years later — 1807 — mails once a fort- night between Erie and Buffalo were carried by a horseman for one hundred and forty dollars a year. In 181 1, John Gray agreed to carry the mail from Buffalo to Cleveland, once in two weeks, for three years, at nine hundred and fifty dollars a year. To-day these cities are six hours apart and correspond by a dozen mails a day. Five years were to pass before Meadville, Oil Creek, Warren, and IMayville were included in a mail - route. The first quarter of a century was over before a daily stage -line ran from Erie to Buffalo. Often at dead of night the farmer was aroused to help the immigrant, or Colonel Bird's carry-all, out of the sink-hole in the Buffalo road.* Travel by stage was considered peculiarly danger- ous. The fare by day, in summer, was four cents a mile; in winter the roads were closed. In the farm-houses there were no children's books, no toys, no games, no pictures, no musical instru- ments. The business of life was to work. Each household was a self-sustaining colony — a New England in miniature. Many years passed before planted orchards bore sufficient fruit to make un- necessary the autumnal gathering of wild apples, fox-grapes, and wild plums. The boys gathered am- ple harvests of beechnuts, butternuts, walnuts, and chestnuts ; the girls made stores of dried pump- * Travellers agreed that one of the worst was just west of "The Gulf," or Twenty -mile Creek, near the State line — New York and Pennsylvania. 224 An Aristocracy of IVealth kins and dried apples. Apple-bees, husking-bees, and quilting-bees were a laborious recreation. In summer might be seen an occasional posy-bed of moss -pinks, marigolds, poppies, lavender, balm, sweet-williams, and summer- savory. Near the door grew lilacs, hollyhocks, and caraway. In religion, nearly all were Calvinists ; in poli- tics, those from the East were Federalists ; those from the South, Democratic - Republicans. But religion was of far deeper interest to them than politics. They knew little of the State Legis- lature and less of Congress. The ideas now embodied in the word nation never occurred to them. Life was a serious business. They had little time to speculate ; their wants were press- ing and immediate. In 1810 the entire coun- try from Buffalo to Detroit, that now has a pop- ulation of more than a million, did not have five thousand. Along the frontier, distinctions in social rank were drawn according to rules unknown in the East. Birth counted for little ; wealth levelled all other distinctions. The struggle for existence strengthened individualism. Isolated settlements, such as the older towns in the West were at first, developed a unique aristocracy largely composed of the families of the more prosperous tanners, lumbermen, and farmers, with a few surveyors and civil functionaries, of whom the postmaster and the squire were easily first. The event of the year was training-day, when the raw youth of the district tried their best to understand the noises I. — p 225 Coiistitittional History of the American People hurled at them by their comnianding officers. It was thought to be a military age, and easily ran to militia titles. Who in middle life to-day does not remember some large citizen of the days of his childhood who was the colonel or the captain — not merely a colonel or a captain, as in later years. As each militia company elected its of- ficers, titles did not easily run out. In our day men find employment for their surplus social en- ergies in belonging to countless societies, lodges, and associations, and such membership ignores distance. The man who now has a lodge-night six times a week, had he lived then, would have been forced to concentrate his social dissipation upon general musters, election days, and religious meet- ings. In the West and Southwest it was easier and more profitable to transport whiskey than corn. The federal collectors hardly ventured over the mountains, and a licensed still was unknown. Drunkenness was the prevailing evil of the times. A grocery -store was usually a liquor -store. In the Northwest some families held slaves, in the early part of the century, in spite of the great Or- dinance, and a greater number had colored ser- vants, who, though free by the law, were members of the household and received no wages. In ten years population overspread the greater part of Ohio and Tennessee, crossed the Indiana border in the Southeast, and began to appear along the northern bank of the river; but the Indian coun- try began below the latitude of Indianapolis and 226 The Purchase of Loinsiana Springfield. Emigration from South Carolina and Georgia was checked by the Creeks and Chero- kees ; and the Chickasaws, and the lesser but equally fierce tribes, held back the people of Tennessee and Kentucky from the rich bottom- lands of Mississippi. Nineteen in twenty of the population lived in the country. Nineteen in a hundred were negroes, living almost wholly south and southwest of Pennsylvania. Before the westernmost advance of population reached the Mississippi, Louisiana was purchased from Napoleon, In 1800 it had been conveyed to France by Spain, in a secret article of the treaty of San Ildefonso, without definition of boundaries. Jefferson made public the purchase on the 21st of October, the three hundred and eleventh anni- versary of the discovery of America. Marshall spoke of the treaty as one of " studied ambiguity." It contained one article which, as it came to be administered, proved a sweeping clause. The in- habitants, as soon as possible, were to be incorpo- rated in the Union, "according to the principles of the federal Constitution," and, meantime, were to be protected in the enjoyment of their " liberty, property, and religion." At once it was claimed that "property" included slaves, and that the treaty, according to the Constitution, was a part of the supreme law of the land. However slight as yet might be respect for the federal govern- ment, it was a guarantor of slavery, and there- fore entitled to some allegiance. The clause in the treaty proved before many years to be one 227 Constitutional History of the American People of momentous interpretation of the functions of the general government. It was one of the first epoch-making measures of the century. Before the century closed, the Louisiana country was to consist of fifteen commonwealths, and their consti- tutions and laws were to be strongly influenced by the issues germinant in this article. Congress speedily erected the Territories of Orleans and Louisiana, specially providing that federal laws respecting the slave-trade and fugitives from jus- tice should be in force in them. The purchase of Louisiana changed the history of the United States. As long as the Mississippi remained the western boundary of the country, the North and the South were conventionally, if not economically, equal forces in government. The new acquisition suddenly and permanently chang:ed old relations. The area of the United States now became about two million square miles, of which by far the greater portion lay north of the latitude of 36' 30'. Orleans touched the Spanish possessions, and was the westernmost extension of slavery. In the far Northwest the Louisiana country joined Oregon, and thus the United States extended from the Atlantic to the Pacific. West of the free States there thus sud- denly opened up an almost unlimited opportunity for the extension of free institutions. A conflict between slavery and freedom for its control was inevitable. All the energies of the country, so- cial, economic, and political, were soon marshalled on one side or the other. The contest between Provision for Public Education freedom and slavery, hitherto obscure, was from this time carried on with increasing fierceness for sixty years. In 1802 Congress authorized the people living in " the eastern division of the Territory north- west of the river Ohio " to form a State sfovern- o ment. Only taxpayers who were citizens of the United States and residents of the Territory for one year were allowed to vote for members of the convention. Congress empowered the delegates to accept or reject its offer of every sixteenth section of land in every township for the use of schools, and the reservation of certain military lands and salt-springs for the use of the State. The lands thus set apart for the support of schools com- prised, in the aggregate, an area greater than half the State of Connecticut. No provision of the kind could have been made in Kentucky, Tennes- see, or Mississippi. There Congress never had title to the land. Large portions of the Missis- sippi Territory were in private ownership before it came fully under federal control. The two sec- tions of the West, the northern and the southern, thus began with unequal facilities for public edu- cation. The difference was largely temperamental, and characteristic of their populations. The Eastern habits of the people of Ohio could not be shaken off. Though the majority of the settlers were unlearned men, there were few illiterates, and none who did not wish their children to have an opportunity to attend school. The spirit of the people dictated the provision in the constitu- 229 Constitutional History of the American People tion of 1803 forbidding the Legislature to enact laws that would prevent the poor from an equal participation with the rich in the schools, acade- mies, colleges, and universities in the State en- dowed in whole or in part with the revenue aris- ing from the school -lands granted by the United States. No distinction or preference in the re- ception of students and teachers should ever pre- vail in these institutions. Congress thus began a new policy, by which public education became an essential part of commonwealth organization. It was followed in the enabling acts for later North- ern States, and led eventually to provisions for education in their constitutions. From the day Ohio was admitted, and largely because of its generous equipment for public education, began a new concept of the functions of an American com- monwealth. The provisions for public institu- tions of learning were the first and the principal cause of a change in the popular idea of the State. From this time the State had the gift of education in its hands, and the public began to look to the State to do things which had before been done by individuals or not at all. Educa- tion at the expense of the State meant the down- fall of discordant individualism. A beginning was made in the education of the masses, in a common school-system. It is impossible fully to estimate the importance of education in a democracy. The educational grant to Ohio was, in all its aspects, the first of the kind in history. Responsive to movements of population, Con- 230 The Formation of Territories gress in 1805 organized Michigan from the In- diana Territory, with Detroit as the capital, and, four years later, again divided Indiana, calling the new Territory Illinois, and making Kaskaskia its capital. The northern peninsula remained part of Indiana. Georgia, in 1802, ceded to the United States the lands between her western boundary and the Mississippi, for which she received one and a quarter millions of dollars and the obliga- tion of the United States to extinguish the Indian titles within the State. The Mississippi Terri- tory, which at first was a narrow strip along the boundary of West Florida, was now extended to Tennessee, with promise of admission into the Union at the discretion of Congress. The act or- ganizing the Territory guaranteed slavery. White men above the age of twenty-five, citizens of the United States and residents of Mississippi one year, owning fifty acres of land and a town lot of the value of one hundred dollars in the Territory, were allowed to vote. This property qualifica- tion, in contrast with manhood suffrage in the Northwest, was in keeping with precedent in most of the States. The white race was now increasing relatively faster than the black. Cities were multiplying in number, but not in their proportion of the popula- tion. They were centres of trade and litigation, but manufactures and towns were not yet synony- mous terms. The aee of factories beo^an after the second war with England. As population became denser in the older regions of the country the press- Coiislitiiiional History of the American People ure westward found voice in a common demand for more land. The pioneer was treading on the heels of the Indian. Two Indian wars broke out almost at the same time — with a confederation of tribes in the North- west, with the Creeks and Seminoles of the South- west, constituting, as the people of the West thought, the principal part of the war of 1812. They would have broken out had that war never occurred. The wave of population was dashing against Indian bar- riers, and there could be only one result. Immigra- tion westward had now overrun what were thought to be the best lands made accessible by Wayne's treaty of 1795. Twenty years had passed. A new generation demanded cheap lands. Hundreds of battles have been fought, surpass- ing in fierceness, and in the number and the skill of participants, the battle of Tippecanoe. Yet because of its effects on the development of the West it lingers in the memory of the people like Lexington and Fort Sumter. Another Pontiac had planned to sweep the whites from the North- west. Tecumseh, and his brother The Prophet, had conceived a more daring plot — to unite all the tribes. North and South, and swoop down upon the settlements at one time. Harrison's victory gave the Northwest to new settlers. For the settler in the Southwest Jackson performed a similar service. His campaigns left a trail of Indian blood. Henceforth no tribe dared com- mit hostilities east of the great river. Harrison and Jackson had won a popularity surpassing 232 SHOWING CIVIL DIVISIONS .AND DISTRIBUTION OF POPULATION The Indian Wars that of Washington or Franklin. When the war of 1812 was over, and the treaty of Ghent was signed, and the country could calmly reflect on its gains and losses, the victories of Harrison and Jackson, which opened the West to settlement, outweighed, in the opinion of the people living in the great valley, all the victories of the Americans on the sea. The popularity of the two soldiers took deep root in public sentiment, and, growing stronger as the years displayed prosperous com- monwealths as the fruit of their victories, at last culminated in the election of the " Hero of New Orleans," and, later, the " Hero of Tippecanoe,"* to the Presidency. By a provision of the national Constitution, a census of the people is taken every ten years. The movement of the frontier westward has thus been regularly recorded. Its position from decade to decade suggests the waves of some mighty sea, each in succession leaping further to the West. Every wave has ingulfed once powerful tribes. From frontier to frontier stretches a succession of battle- fields. Each decade has had its Indian wars, its victories, and its popular heroes. Harrison and Jackson were the first of their kind. Within ten years of their victories, the West stretched far away beyond the Mississippi ; many of the tribes with whom they fought were transferred to the Indian country, and an ample region east of the * For typical resolutions on General Harrison, see those of the Kentucky Legislature, January 13, 181 2. Cousin lit ioual Hisloiy of the American People river was opened to peaceful settlement. Popula- tion continued to converge upon St. Louis, even after these victories on the Thames and the Ala- bama. Within five years of the battle of Tippe- canoe, a population poured into Indiana sufficient to ask for admission as a State. Congress made a grant of school-lands equally generous with that to Ohio, and appropriated an entire township ex- clusively for the support of higher education in "a seminary for learning" — the beginning of ap- propriations of land for State universities. Like the offer to Ohio, this one to Indiana was subject to the will of the convention. The constitution adopted was the first in the country to make it obligatory on the Legislature " to provide by law for a general system of education, ascending in a regular graduation from township schools to a State university, wherein tuition shall be gratis, and equally open to all." In 1817 the Territory of Mississippi was divided. The eastern portion was organized as the Terri- tory of Alabama, and the people of the western portion were authorized to form a State govern- ment — republican in form, and complying with that part of the Ordinance of 1787 applicable to the Southwest. This meant a slave constitution. The free navigation of the Mississippi was guar- anteed to all the inhabitants of the United States. The State was admitted on the loth of Decem- ber. Two years and a day later Alabama was ad- mitted on the same terms. In this State school- lands were reserved as in Ohio. 234 Forebodings of the Struggle for Secession Similar civil changes had meanwhile gone on in the Northwest. In 1818 the people of Illinois were authorized to form a constitution. A land- grant was made like that to Indiana. The portion of the Territory north of the present boundary was attached to Michigan. On the 3d of December the State was admitted. Thus the four new States came into the Union in pairs^Indiana and Mis- sissippi, Illinois and Alabama. Within five years from the organization of the Territory of Orleans its people asked for admis- sion, and Congress acceded by passing an enabling act in 181 1. The conditions imposed on Missis- sippi and Alabama were renewed and complied with, and the State of Louisiana admitted on the eighth day of April following. It was the first State in the recent acquisition, and its admission precipitated an ominous debate, in which there were strong assertions of State sovereignty and some mutterings of secession. A few days later all territory north of the new State was organized as Missouri. Its Territorial government was more liberal than that given to the Northwest twenty- five years before. Members of the House were required to be freeholders — a qualification which, in practice, though not by law, was exacted of the Territorial officials generally. After 18 16 the ses- sions of the Legislature were made biennial — an in- novation in Territorial matters. The people of the nine counties of Massachusetts constituting the District of Maine had been agitat- ing separation for several years, when, in 18 16, de- 23s Const it lit ional Histoiy of the American People sire took the form of a convention, which assem- bled on September 29th, at Brunswick. Most of the Federalists were opposed to separation. Three years of political agitation followed ; Massachusetts assented to separation; a convention assembled at Portland and submitted a constitution to the elec- tors of Maine. It was ratified, was approved by Massachusetts, and on the 3d of March, 1820, the State was admitted. While the people in the Northwest were making these changes, those in the Southwest were similar- ly engaged. Congress organized the Territory of Arkansas in 18 19, with a government like that of Missouri. To induce immigration, bounty lands for military service during the war of 18 12 which were still held by the original patentees or their heirs, were exempted from taxation for three years from date of issue. The laws of Missouri were ex- tended over Arkansas. Georgia, Alabama, Mississippi, and Louisiana had long been complaining of the escape of run- away slaves into the Floridas. Partly because of the weakness of Spain, but principally in compli- ance with the wishes of the pro-slavery element in the Union, Congress early in 181 1 passed a res- olution that the United States could not, without serious disquietude, see any part of the Floridas pass into the hands of a foreign power, and on the same day authorized the President to take posses- sion of East Florida. A month later it authorized him to take possession of West Florida. Though the peninsula was thus converted into a military 236 Spain Sells Florida possession of the United States, Congress declared that it should be subject to future negotiation. No act of Congress was ever more popular along the Southern frontier than this one. Remonstrance by Spain was useless. It could do no more than sell a possession already practically in permanent military possession of the United States. On the twenty-second day of February, 1819, a treaty was made by which Spain relinquished all claim to the Floridas and to the Louisiana country. The con- sideration was five millions of dollars and the as- sumption of certain claims, which proved event- ually to amount to a million and a half more. It was this treaty that defined the western boundaries of the Louisiana country ; but influences were al- ready at work which, in a quarter of a centur}^ left the sea- coast of Florida the only part of our national boundary fixed by this treaty. Portions of it now constitute the boundaries, in part, of thirteen commonwealths. St. Louis, the principal city on the Mississippi, lay at the confluence of streams of population from the East. Before the Territory of Missouri was in its eighth year its people were seeking ad- mission. On the 6th of March, 1820, Congress passed an enabling act, with a more generous grant of lands for school purposes than that made to Indiana. Four sections were granted as a site for the seat of government — the first grant of the kind. A condition found in later enabling acts was for the first time imposed — that the constitu- tion of the State be republican in form, " and not 237 Const it iifioiial History of the American People repugnant to the Constitution of the United States." It was with the latter part of this con- dition that the Missouri constitution conflicted and for a time delayed the admission of the State. For the first time the question was raised whether slavery should be permitted west of the Missis- sippi and north of Louisiana. It was settled by applying the sixth article of the Ordinance of 1787 to the portion north of 36° 30', and admitting Missouri with a pro-slavery constitution.* As orig- inally defined, the western boundary of the State was a meridian line, and did not include the tri- angle in the northwest, about equal in area to Delaware. This was annexed to Missouri in 1836, in defiance of the compromise of 1820. With the organization of the Territory of Flor- ida, in 1822, the public domain passed wholly into the hands of civil authority. In less than forty years from the day when the independence of the United States was recognized, population had overspread more than a thousand miles of the Western country. Nine commonwealths had arisen in a region which, in 1 781, was in the possession of hostile tribes. The West was now greater than the East. New issues had arisen in the nation. New States and old were confronted by new social and economic problems, in the settlement * On the 26th of June, 1821, by a "solemn public act," the Missouri Legislature complied with the conditions of the en- abling act, that the objectionable clauses in the State constitu- tion should never be construed so as to violate rights guaranteed by the Constitution of the United States. 238 The Domination of Western Ideas of which the constitutions of the eighteenth century gave Httle help. Consequently the constitutions of the new commonwealths contained innovations, chief of which were changes in the basis of rep- resentation, in the franchise, in the method of securing public oflficials, in provisions for public schools, colleges, and universities, and in the dis- tribution of the functions of government among the departments. The constitutions, like the people of the new States, were more democratic in character than those of the East. The new organic laws of the West were a wave of consti- tutions. Those of the eighteenth century com- prised the first, these the second, on the great sea of American democracy. The influence of ideas dominant in the West was reflected and felt in New York and Massachusetts, in Connecticut and New Jersey, in Maryland and Georgia. These older States were discussing, if not adopting, re- forms in the basis and the apportionment of rep- resentation, reforms in the franchise, and, to a less extent, in the organization of the adminis- trative, or, as it may now be called, the civil ser- vice. Government by property was giving place to government by persons. CHAPTER IX FROM THE ALLEGHANIES TO THE MISSISSIPPI At the opening of the new century the frontier advancing westward was along the Ohio River.* The greater part of the original States was in private ownership. From the shores of Ontario and Erie a new zone of occupation extended south- westward to the country of the Creeks and Chero- kees — a new world of isolated settlements, found along the great streams flowing into the Ohio, along the south shore of the two great lakes, and in the valleys of Kentucky and Tennessee. But throughout this new region the fear of straggling half-breeds and remnants of once powerful tribes made the new West avast agricultural camp. St. Louis stood at the outpost of civilization. Peace with the United States, France, and Spain con- tributed to make it a centre of population as well as a frontier trading-post. It was the one town on the continent which served the func- tion of the middle -man with the people of the States, the French, Spaniards, and Mexicans on the south, and the unknown Indian tribes of the * The principal authorities for this chapter are the treaties, the statutes at large referred to, and the meagre records of the constitutional conv^entions. 240 The Control of the Channels of Commerce yet undiscovered West. It stood near the con- fluence of the three great rivers of the country — the Ohio, the Mississippi, and the Missouri — the confluence also of civiHzation and savagery. Three hundred miles to the south, another and an older town, New Orleans, laid tribute on all that came from the upper country; and this meant the sur- plus product of the United States west of the Alleghanies. A less discerning mind than Jeffer- son's could see that the fate of the Western coun- try was in the hands of New Orleans. The phrase "manifest destiny" had not yet been invented as the apology for the acquisition of new territory, but the thought was embodied in Jefferson's dic- tum, that the power possessing New Orleans w^as the natural enemy of the United States. It was a prescient idea, and one that the wayfaring man might not have expected to find in a republic of only twenty -five years' standing, and not with- out signs of falling. Why more land when more than half the public domain was yet a wilder- ness } Why the isle of Orleans when popula- tion had barely reached the Altamaha, four hun- dred miles to the east, or the Cumberland, three hundred to the north } We all know the reason — it has been written in the history of all nations — that the power is supreme wdiich regulates com- merce and controls the highways of trade. Al- though the greater part of the people of the United States inhabited the Atlantic slope, the future of the republic did not rest with them. More than half the country lay in the valley of the Missis- I.— Q 241 Const it lit ioiial Histoiy of the American People sippi; on this yet unoccupied portion rested the fate of the Union, Trade and commerce follow lines of least resistance. The mountains which divided the people of the coast from the people of the great valley might prove a greater obstacle to " a more perfect union " than the delusion of fiat money and the jealousy of the State sovereignties had been at the time of the ratification of the Constitution. In the last analysis union rests on morality and industrial association, and the gen- eral welfare means a true political economy. Thus the fate of the republic depended on the course of streams and the trend of mountains, as well as on Congress and the Legislatures. Had the Rocky Mountains run parallel with the Missis- sippi at twenty miles to the west, it is doubtful whether the United States would ever have ex- tended beyond its original limits and the penin- sula of Florida. The acquisition of the Louisiana country ranks in importance with the Declaration of Independence — for it made room for democracy in America. With nations, as with individuals, it is the for- ward look that stimulates. Too much history, like too much introspection, chills the spirit and crip- ples action. Thus the thought of an energetic people is of their outposts and frontier, and the history of these is the history of civilization. When the new century opened the outposts of the re- public were at Buffalo, Erie, Detroit, Mackinaw, Chicago, Green Bay, Prairie du Chien, St. Louis, and Orleans — names, it is true, seldom heard in 242 Concerning the Cession of Louisiana the East then, but to the statesmen of the day the subject of diplomacy, the signs of the times, the vanguard of democracy. Louisiana was ahnost an unknown land. Not until sixteen years after its purchase, when Florida was acquired, was there even a rude definition of the boundaries, for no accurate maps existed. No man knew the true course of the Rio Grande or of the Rocky Mountains, for there were several great rivers and many mountain ranges, any of which might be the boundary. Fortunately for the republic, the western boundaries were at the edge of the world, and not likely, it was thought, to raise diplomatic questions for centuries. Of greater domestic interest were the political articles of the treaty. The United States guaranteed the inhabitants of Louisiana the protection of their liberty, property, and religion, and this guarantee of property rights was soon applied in a way that determined the real importance of the acquisition and its effect on the destiny of the country. If property included slaves, what was the national significance of the guarantee } What effect on the commonwealths of the future } Was the fate of freedom in the States to be formed within the new acquisition to be determined by the property rights of a few thousand people living in Louisiana at the time of the treaty ? Nor were these the only civil problems latent in the acquisition. What effect would the great Or- dinance of 178 7 now have.'* If slaves were property — and, by the treaty, slavery was to prevail through- 243 Const il lit ioiial History of tljc American People out the Louisiana country — was not the repubHc thereby converted forever into a slave-holding com- munity? The Ordinance excluded slavery from the territory northwest of the Ohio, but at the same time included it southwest. Slavery did not exist in New Hampshire, Ver- mont, and Massachusetts ; but elsewhere, in every State, and in the Northwest Territory, there were slaves. By the Ordinance it became unlawful in that Territory after 1800, but the year came and went with no change in the condition of the ne- groes within its boundary. The white people in the Territory were not enthusiastic to apply the Ordinance. The year of the acquisition of Lou- isiana witnessed the admission of Ohio* with a constitution forbidding slavery, and it also saw the persistent efforts of the inhabitants of Indiana to persuade Congress to repeal, or suspend, the Ordinance. Their petition was answered by the unanimous report of the committee, of which John Randolph was chairman. Slave labor would be unprofitable in the Northwest ; slavery would make the frontier less secure. But defeat did not cause petitions to cease. In the following year another committee reported favorably, but the House took no action. Two years later another committee made a favorable report, on the ground that the repeal of the prohibitory clause was almost universally desired in the Territory; that the suspension of the clause would stimulate * February 19, 1803. Slavery in the Northwest Territory immigration, and that slave-owners would be free to move to Indiana if they chose. • The suspen- sion would also improve the condition of the slaves. The more they were scattered, the better care they received from their masters, as experi- ence proved that the comfort of slaves was in proportion to the smallness of their number — an argument to be made much of by Madison, and re- peated by the friends of slavery extension in 1820. The House, however, took no action. Again, in 1807, a committee reported favorably, and its opin- ion was reinforced by a letter from William Henry Harrison, Governor of the Territory. A new argu- ment was presented. Though inexpedient to force the population of the Territory, it was desirable to connect its scattered settlements, and place it on equal footing with the different States. Indiana was so far inland it was improbable that slaves could ever become so numerous as to endanger the peace of the country. The Territory should be open freely to the current of immigration. Sus- pension of the clause, it was now claimed, did not involve the abstract question of freedom or sla- very, because slavery existed in different parts of the Union. Rather, the suspension would amelio- rate the condition of the slaves, because it would merely authorize their removal from other States. But the House took no action. The Indiana peti- tion came as a resolution of the Territorial Legis- lature. Private judgment was thus strengthened by the official act of the legislative and executive. In January, 1808, the whole matter came before 245 Coiistitiitioihil Historv of the American People the Senate, but its committee reported the pro- posed change inexpedient, and Congress took no further action. Thus, by a coincidence, the terri- tory northwest of the Ohio was secured to freedom in the year when, by the terms of the national Constitution, Congress was free to prohibit the African slave-trade. The fate of the Indiana memorial, settled five years after the acquisition of Louisiana, may now be said to have been an augury of the fate of slavery in the new domain, but there is slight evi- dence that the action of Congress was so con- strued at the time. The name Louisiana, then, as now, was connected, in popular thought, with the southernmost part of the purchase. There was no objection to the acquisition because of the ex- tension of slavery. Objection was of the kind ex- pressed in the federal convention of 1787, when the contingency of new States in the West was discussed — that they would multiply and out-vote the East, and therefore ought not to be created. Moreover, the Constitution made no provisions for the acquisition of territory. These two ob- jections, involving questions of federal relations rather than of slavery, engrossed what public at- tention was given to the matter. The article of the treaty by which the Constitution of the United States was soon invoked as guaranteeing the right of property in man, was generally unknown or overlooked. Was not the acquisition a South- ern and Western question, after all } Quincy and the New England Federalists, of course, object- 246 Louisiana and Orleans as Territories ed,* but would the}' not object, as they ever had objected, to whatever the South and West might ask ? Times had changed ; henceforth the West should outweigh a black cockade. Let the Fed- eralists remember that Jefferson, the man of the people, was President. At last the West was to have its rights, and it gathered more fervently than ever beneath the banner of that new and powerful party described by its founder as " inclin- ing to the legislative powers." Ten days after the treaty was proclaimed Con- gress authorized the President to take possession of the new countr}^ and it was erected into two Territories — Louisiana and Orleans. The fugitive- slave law of 1 793, and the laws respecting the slave- trade, were specially mentioned as extended to the new Territories. On the 2d of March Orleans was provided with a permanent government, and on the next day Louisiana. The form became the precedent for later Territories in the South. Within five years from the organization of Orleans its population had sufificiently increased to au- thorize the formation of a State government. By the enabling act of February 20, 181 1, the electors were empowered to choose delegates to a constitu- tional convention. Its work was completed eleven months later. The act prescribed several condi- tions, suggested in part by a clause in the treaty of 1803. The constitution should contain the fundamental principle of civil and religious liberty, * See Josiah Quincy's speech in the House, January 14, 181 1. 247 Const it lit ioiial History of tlv /American People should be republican in form, and consistent with the national Constitution. Satisfied with the plan of government submitted, Congress admitted the State on the 8th of April, and, six days later, en- larged its boundaries. The greater part of the Louisiana purchase re- mained as yet unorganized. To the portion north of the new State, Congress, on the 4th of June, save a Territorial orofanization and the name Mis- souri. The government departed slightly from precedent in prescribing a biennial election of members of the House. These were required to be freeholders. In 1816 the sessions of the Legis- lature w^ere made biennial — the first application to a Territory of a reform already in progress in the States. The laws of Louisiana were extended over the new Missouri Territory, except any parts of them inconsistent with the act creating the Territory. Thus the early legislation of Missouri was, in part, ingrafted on the civil law. Georgia had recently ceded to the United States all the region west of her present boundary — the result of an amicable agreement between the State and national commissioners, ratified on the i6th of June, 1802.* The United States agreed to pay one and a quarter millions of dollars, and also to extinguish the Indian title within the State and over the greater portion of the ceded area. The new Territory was to be admitted as a State as soon * For papers respecting this cession, see Donaldson's Public Domain, pp. 79-81. Forty-seventh Congress, second session; House of Representatives, Miscellaneous Document 45, Part 4. 248 The Progress of State- Making as it contained sixty thousand people, or sooner, if Congress thought expedient, and the United States agreed that the Ordinance of 1787 should apply to it, except the article forbidding slavery. This cession enabled Congress to extend the Terri- tory of Mississippi northward to the Tennessee line. The right to vote was limited to free white males above the age of twenty-five, citizens of the United States who were residents of the Territory one year, provided they owned fifty acres of land in the United States, or a town lot worth one thousand dollars within the Territory. Indiana was divided in 1805, and to the por- tion comprising the southern peninsula the name Michigan was given, with Detroit as the capital. Again, four years later, the Territory was divided, and the western part, with capital at Kaskaskia, was called Illinois. Indiana now sought admission, and on the 19th of April, 181 6, Congress authorized its people to elect delegates to a constitutional convention, lim- iting the choice to white male citizens of the United States, residents of the Territory for one year, who had paid a county or Territorial tax. On the 29th of June of the following year this convention as- sembled at Corydon, and completed a constitution, which was ratified by the electors and approved by Congress. On the nth of December the State was admitted. In 18 1 2 the Territory of Mississippi was en- larged so as to include the region east of the Pearl River, west of the Perdido, and south to the 249 Coiisiilittioihil History of the American People thirty-first degree of latitude. Within five years the inhabitants applied for admission. On the ist of March, 1817, Congress passed the act neces- sary for admission, and the electors in the thirteen counties chose forty -eight delegates, who assem- bled at Washington, and, after six weeks' labor, completed a constitution. Under this the State was admitted, on the loth of December. A con- dition of the enabling act required the constitu- tion to be republican in form, and in conformity with as much of the Ordinance of 1787 as was applicable to the Southwest. The establishment of slavery was, therefore, a condition of admission. An enabling act for Illinois passed Congress on the 18th of April, 181 8; a constitutional conven- tion met at Kaskaskia on the 26th of August, and its work was approved by the electors and by Congress. By resolution, the State was admitted on the 3d of December. Alabama had long been a land of promise when, in 181 7, it was created a Territory. It was a fair and fertile country, in which the United States had guaranteed to extinguish the Indian title. A tide of immigration poured in from the adjoining States, especially from Tennessee and Kentucky. In two years its people sought admis- sion to the Union, and Congress responded by the act of the 2d of March, 18 19, authorizing them to form a constitution and State government sub- ject to the condition imposed on Mississippi with respect to the Ordinance of 1787. The constitu- tional convention completed its work on the 2d 250 Extension of the Ordinance of lySy of August. On the 14th of December, Alabama became the twenty -second State in the Union, with the suggestive distinction of having been a Territory for a briefer period than any other American commonwealth. Arkansas was given a Territorial organization in 1 8 19, after the form of that of Missouri. As an inducement to immigration, and in response to public sentiment in the South, bounty lands granted within the Territory for military services during the war of 181 2, and still held by the orig- inal patentees or their heirs, were exempted from taxation for three years from date of the patent. In 1820 the chansres in the form of the Missouri government were declared by Congress to apply equally to Arkansas. The enabling act for Missouri passed on the 6th o^ March, 1820, and a constitutional conven- tion was elected early in May. Congress im- posed the usual conditions — that the new consti- tution be republican in form and not repugnant to the Constitution of the United States, but the last section of the enabling act prescribed a new condition, destined to become epoch-making in the history of the country. In all that Territory ceded by France lying north of 36° 30', not in- cluded within the limits of the proposed State of Missouri, slavery, or involuntary servitude, other than as a punishment for crime, was forever pro- hibited, but fugitive slaves found there might be lawfully reclaimed. Thus the Ordinance of 1787, as applied north of the Ohio River, was extended 251 CoHsiitutional History of Ibc American People over the Louisiana purchase, north and west of the State of Missouri, and the greater part of the republic was thereby made free soil. From the 12th of June till the 19th of July the convention was busy at St. Louis in forming a constitution for the new State. Among other or- dinances it passed one formally declaring the as- sent of the people of the State of Missouri to the conditions of the enabling act. The new consti- tution was approved by the people, who, at the time of voting approval, had elected a State ticket and practically established a State government. The enabling act had provoked the first exhaust- ive discussion of slavery in Congress. The act was itself a compromise. As first submitted to Congress, the constitution of the new State di- rected its Legislature, as soon as possible, to ex- clude free persons of color from the State. The clause at once, and for the first time, raised the question whether such a provision conflicted with the national Constitution. Were these citizens of the United States } The controversy threat- ened to prevent the admission of the State. New York, and other States in which these persons might become electors, saw in the exclusion a direct violation of the rio-hts of their citizens under the Constitution. By a " solemn act " the Missouri Legislature promised that the ob- jectionable clause should never be applied to citizens from another State, and, on the loth of August, 1 82 1, President Monroe, who had been authorized to admit the State upon receipt 252 ^V""'^^ POSSESSIONS - - GeoU<^^ ^ r LEGEND i (o Z^ opposing Sentiments About Texas lute vote which, seventeen years before, had sup- ported Randolph and Lowndes in their opposition to slavery restriction now brought forth a harvest of public sentiment in the South. On Christmas Day, 1837, the Legislature of Alabama gave ex- pression to this in a joint resolution for the reannex- ation of Texas. Similar resolutions were passed by other Southern Legislatures. Those of the North passed counter- resolutions.* The country * The conflicting and ominous elements in public opinion from 1835 to 1850 are nowhere more plainly and significantly indicated than by the acts and joint resolutions of the State Leg- islatures respecting Oregon, Texas, and slavery. The principal resolutions and acts are as follows: Alabama.— Joint resolutions for annexation of Texas, Decem- ber 25, 1837, and January i, 1842. Another sympathizing with Virginia {z'n re the resolutions of New York, April 11, 1842, as to refusing return of fugitive slaves), " a dangerous and alarming at' tack upon Southern rights," February 14, 1843. "The right to exercise power (over slavery) by a State is higher and deeper than the Constitution," resolution of January 27, 1845. Alabama will act in concert and make common cause with other slave States for the defence of the institution of slavery — Congress has no power over the institution, resolution of March 6, 1848. Delaware. — Joint resolution — the addition of slave territory hostile to the spirit of free institutions and contrary to sound morality, February 25, 1847. Florida. — Joint resolution that "Congress has no power to abolish slavery in the District of Columbia or to prohib- it it south of 36° 30'. Florida ready to join Virginia, South Carolina, North Carolina," etc., "for defence of our rights." "whether through a Southern convention or otherwise," Jan- uary 13, 1849. Georgia. — Elaborate resolution on " Federal relations," Wil- mot proviso, slavery extension, etc., February 8, 1850. Illinois. — Joint resolution favoring the occupation of Oregon, February 21, 1843 ; to 54° 40', February 27, 1845 ; same date, one favoring " reannexation " of Texas. Kentucky. — Joint resolution : The United States should assert I.— Y 337 Constitutional History of tJjc American People was again divided. Like the ants, the people for- got that their roof had recently fallen about their ears. Public sentiment North was arrayed against public sentiment South. For a time its vehe- its rights and occupy Oregon, February 27, 1843. See also on Federal relations, March i, 1847. Louisiana. — Joint resolution proposing a convention of the slave- holding States to obtain respect for their institutions, " peaceably if they can, forcibly if they must." Resolution of February 20, 1837. Massachusetts. — Joint resolution against the annexation of Texas, March 16, 1838 ; against the admission of new slave States, April 23, 1838 ; also, of same date, resolution that Congress by the Constitution has power to abolish the slave traffic between the States. The admission of Texas dangerous to the peace of the Union, March 17, 1843. Michigan. — Joint resolution, March 1 1, 1844, that the joint oc- cupancy of it with Great Britain should cease , that our claim to 54° 40' is "clear and incontestable," January 4, 1846 ; that the Mexican War was justifiable, February 13, 1847; that slavery "is a mere local institution without positive law"; that the prin- ciple of the Ordinance of 1787 is fundamental, and that Congress has the power and the duty to prohibit slavery in any United States territory now or to be acquired. January 13, 1849. Joint resolution favoring the admission of California, February 23, 1850. Mississippi. — Joint resolution like the last of Alabama, Feb- ruary 6, 1841. For annexation of Texas, February 25, 1842. Res- olution approving and vindicating the Mexican War, March 4, 1848 ; on Federal relations, March 6, 1850 ; on California, March 5, 1850. Very elaborate, pro-slavery, and favoring State sovereignty. New Hampshire. — Joint resolution for the " reannexation of Texas," December 28, 1844, and another disapproving of " British interference" in Texas, July 2, 1845. Joint resolution that "the Ordinance of 1787 should be extended over Texas," December 29, 1848. Slavery should be excluded from New Mexico and Cali- fornia, January 4, 1849. No more slave States, "all men created equal"; New Hampshire "pledged for freedom"; no slavery in Oregon, July 10, 1846. New York. — Joint resolution disapproving Governor Seward's refusal to return fugitive slaves (to Virginia), because slavery is not felony within meaning of the United Slates Court, Art. iv., 338 The Conquest of Mexico mence was restrained by the invasion and con- quest of Mexico. But victory could only aggra- vate the differences between the States, because it extended the boundaries of the country to the Sec. 2; the Legislature resolves that it is, April ii, 1842. This act of the Governor provoked counter- resolutions in Virginia, South Carolina, Georgia, Florida, Louisiana, Kentucky, Alabama, and Mississippi. Extension of slavery into the Territories should be forbidden, resolutions of January 27, 1847, and January 13, 1848; the laws of Texas and slavery should be excluded from the region between the Neches and the Rio Grande and from New Mexico, east of the Rio Grande, resolution of January 4, 1849. Extension of slavery to California should be forbidden and Congress should abolish the slave-trade in the District of Columbia, resolution of January 16, 1850. Ohio. — Joint resolution that slavery should be excluded from Oregon, February 8, 1847; that Congress has power to exclude it from acquired territory, February 24, 1848; that the Ordinance of 1787 should be extended to territory acquired from Mexico, February 13, 1847; February 25, 1848. Pennsylvania. — Joint resolution instructing the Senators and Representatives in Congress to vote against the acquisition of new territory unless slavery be prohibited, January 22, 1847. South Carolina. — Joint resolution advocating a call for a con- vention or Southern congress " to arrest further aggressions and restrictions on the rights of the South," December 20, 1850. Compare resolutions of December 17, 1841. The commonwealth put into a " state of defence," act of December 20, 1850. Tennessee. — Joint resolution in favor of annexation of Texas, January 20, 1838; another for its admission into the Union, "on an equal footing with the sovereign States of these United States of America," February 7, 1842. Vermont. — Joint resolution against annexation of Texas ; for abolition of slavery in the District of Columbia and in the Terri- tories : joint resolution given in "Acts and Resolutions of 1838," p. 23. The perpetuation of slavery a violation of the national compact. 1844. Virginia. — Joint resolution that Congress can impose no con- dition on slavery extension, as such limitation is not within its power; laws preventing the removal of slave property to a Terri- tory unconstitutional and in violation of the Missouri Com- 339 Constitutional History of tJjc American People Pacific. The acquisition from Mexico became at once a new subject for controversy. The Texas question, and all that it involved, did not suddenly supplant in popular interest the question of State banks and internal improve- ments. But it was an open cause of division be- tween the sections. They were less divided over the Oregon question. The boundaries of the Oregon country no man knew. Its joint occupa- tion by Great Britain and the United States only postponed a struggle. Public opinion found ex- pression here and there in the resolutions of State Legislatures favoring the "immediate occupation of all Oregon," and this meant to 54° 40' north lati- tude. New England, for a time alarmed at the prospectiv^e dismemberment of Maine in settling the northeastern boundary, delivered herself of strong State -sovereignty notions and appeals to the States,* but finally acquiesced in the decision promise, March 8, 18-I.7. See also the joint resolution on the Wilmot proviso, January 20, 1849. Wisconsin. — Joint resolution favoring the application of the Ordinance of 1787 to all new territory, June 21, 1848. Joint resolution favoring the "immediate occupation of Oregon," Jan- uary 13, 1844. * See the following authorities having reference to this sub- ject: Resolutions of the Massachusetts Legislature, February 9, 1830, protesting against the adoption of the decision of the King of the Netherlands and declaring it to be in violation of the rights of the State as secured by the Federal Constitution, and "consequently null and void and in no ways obligatory upon the government or people." Resolutions of February 24, 1826; Feb- ruary 15, 1832; March 23, 1832; March 14, 1836, and April 19, 1838, the latter declaring that no power is delegated by the Con- stitution of the United States to Congress authorizing it to cede to a foreign nation any territory lying within the limits of either 340 opposition to the Federal System under the Webster- Ashburton treaty of 1842.* The hostile attitude of Maine for a time indicated how thoroughly the doctrines of '98 possessed the people of a State when they thought themselves injured by the general government. Objections of this kind, North or South, all tended to become obstacles in the pathway of the national idea. of the States of the Union. Resolutions of March 26, 1839; March 13, i84i,and March 3, 1842. Resolutions of Maine Legis- lature, February 28, 1831, that the convention of the United States with Great Britain, made in September, 1827, tended to violate the Constitution of the United States and to impair the sovereign rights and powers of the State of Maine, and that Maine is not bound by the Constitution to submit to the decision which is or shall be made under the convention. Resolutions of the Maine Legislature, January 19, 1832, that the United States has only a "special and modified sovereignty." Governor Enoch Lincoln's message of January 8, 1829: " By Senators in Congress we repre- sent our aggregate and consolidated population in its common and combined wants and demands. It is the senatorial rep- resentative who is to appear for us all against invasion of the sovereignty which belongs to the republic." Laws of Maine, 1829, p. II. The question of State sovereignty involved in the Alien and Sedition laws, the Virginia and Kentucky resolutions, the tarifT in South Carolina in 1828, the taxation of the United States Bank by Ohio in 1820, and the settlement of the northeastern boundary, brought out a mass of resolutions by State Legislat- ures. Many of these are given in a pamphlet entitled The Vir- ginia and Kentucky Resolutions of 1798 and '99; with Jefferson's Original Draught thereof. Also Madison's Report, Calhoun's Address, Resolutions of the Several States in relation to State Rights. With other Documents in Support of the JefTersonian Doctrines of '98. " Liberty — The Constitution — Union." Pub- lished by Jonathan Elliot, Washington : May, mdcccxxxii. ; 82 pp. Maine and Massachusetts were present, in their commissioners, when, at Washington, in June, 1842, Lord Ashburton and Webster signed the treaty. The northeastern boundary question was thus, at last, amicably settled. New England had declared, but not applied, the doctrine of State sovereignty. * Treaties and Conventions, 432-438. 341 Const it lit ioiial Historr of tin' American People Russia, in 1S24, agreed witli the United States by treaty that the boundary between the two countries should be along the line of 54° 40', thus laying a foundation for the extreme American claim.* But the Oregon country was far from Washington, and was of slight commercial interest to the East, Its boundaries seemed of no mo- ment, as probably population would not reach the country for centuries. The treaty of 1846 with England,! fixing the boundary along the forty-ninth parallel, did not provoke great public interest. This treaty settled the northwestern boundary as far as Puget Sound. On the 2d of February, two years later, by the treaty of Guadalupe- Hidalgo, | the boundaries of the purchase from Mexico were es- tablished. Thus, by the middle of the century de- mocracy in America was in possession of the heart of the continent from ocean to ocean, from the great lakes to the Rio Grande. Florida was out of the lines of migration. Immigrants in the North were passing into Michigan, Illinois, Wisconsin, and Iowa; in the South the tide flowed into Texas. As an inducement to settle in Florida, Congress § now offered a quarter of a section of land to any person, being the head of a family or a single man over eighteen years of age, able to bear arms, who, within a year, would settle in East Florida. The population of the Territory had doubled in twenty years, but was still small. || * Treaties and Conventions, 931-3. t fd., 438-9. X Id., 681-694. § Act of August 4, 1842. II Population, 1830, 34,730; 1840, 54,477; 1850, 87,445. 342 Texas Admitted by a Unique Resolution The effect of the act was immediate. In ten years population increased over thirty thousand. The rush of settlers caused numberless land dis- putes, so that Congress found it necessary to re- vise the late act. As early as 1838* a convention had assembled at St. Joseph's and formed a con- stitution, but seven years passed before Congress passed an enabling act.t It applied alike to Flor- ida and Iowa, and admitted both States. But Iowa, dissatisfied with the boundaries imposed by the act, refused to enter the Union with them. Con- gress passed a supplementary act on the same day relative to Iowa, and in the following year,^ in a third act, again defined the boundaries and referred the boundary dispute between it and Missouri to the Supreme Court. This act made the usual grant of lands for schools, public buildings, and internal improvements, and admitted the State on the 28th of December.§ On the ist of March, 1845, the popular clamor for the reannexation of Texas was satisfied by a joint resolution of Con- gress, which remains unique in our history. Texas was not asked to adopt a constitution in conformity with that of the United States. The condition imposed by Congress was the submis- sion to it of all questions of boundaries. A State constitution should be made, and, with evidence * December 3d. f March 3, 1845. | August 4, 1846. § See journal of this convention, held May 4-19, 1846; Iowa City, 1846. Also, the Documentary Material Relating to the History of Iowa, edited by Benjamin F. Shambaugh, Nos. i.-viii. ; published by the State Historical Society of Iowa. 343 Const itiitional History of the American People of its adoption, should be sent to the President, to be laid before Congress by the ist of January, 1846. The United States should not be charged with the liabilities of the late republic. It retained its public lands. With its consent, four States, or less, might be formed out of its domain and be entitled to admission into the Union. All formed south of the line of the Missouri Compromise should be admitted with or without slavery as the people of each State should decide. North of the line slavery was prohibited. On the 4th of July, 1845, a convention met at Austin, and completed a State constitution late in August,* It was submitted to popular vote and ratified.! The vote bore small ratio to the population. At this time there were upwards of fifty thousand men in the State, most of whom were slaves. Many, especially the native Mexi- * August 27th. t Four thousand one hundred and seventy-four to three hun- dred and twelve. See the following works relating to this sub- ject : The Constitution of the Republic of Mexico and of the State of Coahuila and Texas, containing also an abridgment of the Laws of the General and State Governments relating to Col- onization, with Sundry other Laws and Documents, not before published, particularly relating to Coahuila and Texas, the Docu- ments relating to the Galveston Bay and Texas Land Company; the Grants to Messrs. Wilson and Exter, and to Colonel John Dominguez. With a description of the soil, climate, productions, local and commercial advantages of that interesting country. New York, 1832. Journal of the Convention, October 16 to No- vember 14, 1835 ; Houston, 1838. Journal of the General Council of the Republic of Texas, November 14, 1835, to March 11, 1836; Houston, 1839. Journal of the Convention of July 4 to August 28, 1845 ; Austin, 1845. Debates of same, W. F. Weeks, reporter ; Houston, 1846. 344 IVisconsin Made a State cans, did not vote. It was the American party that made the constitution and carried it through. It was this party that, from first to last, effected reannexation. Congress accepted the constitu- tion, extended the laws of the United States over Texas, and admitted it by joint resolution.* Wisconsin was now asking admission. Con- gress passed the requisite act in August,! and on the 15th of October a convention assembled at Madison. Its work was rejected by the electors, and another convention assembled at the same place late in the following year.| The constitu- tion it submitted was approved by the electors in March and by Congress in May.§ In ten years the population of Wisconsin increased from thirty thousand to three hundred thousand. || California comprised the greater part of the Mexican acquisition, for by that name the country from Texas to the Pacific was known in the East. Congress extended the revenue laws over it, and made San Francisco a port of entry.]| Violations of law were to be prosecuted in the Supreme Court of Oregon, or in the District Court of Louisiana. * December 29th. f August 6, 1846. I See Journal of the Convention to Form a Constitution for the State of Wisconsin, Begun and Held at Madison, on the Fifth day of October, One Thousand Eight Hundred and Forty-six ; Madison, W. T., 1847. Also, Journal of the Convention to Form a Constitution for the State of Wisconsin, with a Sketch of the Debates, Begun and Held at Madison, on the Fifteenth day of December, Eighteen Hundred and Forty-seven; Madison, W. T., 1848. § The State was admitted May 29, 1847. II Population, 1840, 30,945; 1850, 305,391. ^ Act of March 3. 1849. 345 Coiistitittional Hisforv of ilk' American People Vermont, Kentucky, and Tennessee had never been organized as Territories. Texas and Califor- nia were to be similar exceptions. As soon as news of the discovery of gold in California spread abroad, all the world set its face towards the gold-diggings. While Congress was debating whether California should be organized as a Ter- ritory, more than two hundred thousand men had arrived on the coast and were transforming it into a State. Their civil necessities quickly outran the performance of Congress. A convention as- sembled at Monterey* on the ist of September, and its work was approved by the electors in November. A year and nine days after the convention met Congress admitted the State — the thirty-first in the Union. It came in as free soil. The balance of power between the States was broken. Public opinion again found expression in the resolutions of the State Legislatures — some favoring, some op- posing the further extension of slavery. Its restric- tion was viewed with alarm by the slave-holding States, and their expostulatory resolutions sounded a cry for a Southern convention. Some slave-hold- ing States made provisions for military protection. The doctrine of '98 seemed on the point of being put to practical test.f An act creating the Territory of Minnesota pass- * See Report of the Debates in the Convention of California on the Formation of the State Constitution, in September and October, 1849. By J. Ross Browne. Washington : Printed by John T. Towers, 1850. See also Vol. ii.. Chapters x.. xi., xii. f See note, pp. 340 et seq. 346 The Territories of Minnesota and Oregon ed earl}'- in March.* Congress limited the franchise to free white men, and followed the Territorial precedents of the Northwest. As Minnesota was organized out of Wisconsin, the laws of the latter were continued in force as far as was consistent with the recent act. The new Territory contained about six thousand people,t and was divided into nine counties. Oregon had been a theme for debate in Congress, more or less, for twenty years. It was too far away to awaken much popular interest, and no man's seat in Congress depended upon his advocacy of its claims. Immigrants were arriv- ing in large numbers, and were demanding a Ter- ritorial government. National parties made Ore- gon the substance of planks in their platforms, but these did not make a passable road to Astoria. Finally, Congress erected the country into a Ter- ritory,^ providing also that it might be subdivided into two Territories. The model followed was that of Minnesota. Only white men could vote or hold office. The act contained a new provi- sion, that recalled the panic of 't^j — the Territori- al Legislature was forbidden to incorporate a bank, or to grant any institution banking powers, or to pledge the credit of the Territory for any loan. Nor could it give any privilege of making or cir- culating bank-bills, or bills of exchange, or any- thing like them. This indicated that the lessons of '2>7 were not forgotten. Another lesson call- ing for reform, too, was remembered: henceforth * March 3, 1849. t Population, 1850, 6077. X Act of August 14, 1848. 347 Const it lit ioiial History of tlv American People every law must embrace but one object, which must be expressed in its title. This was an early attempt to stop the evil of including vicious legis- lation under the phrase of the title " and for other purposes." A provision of local importance for- bade the obstruction of streams that would prevent the salmon from passing up and down them freely. The antislavery provision of the Ordinance of 1787 was imposed upon the Territory, thus making it free soil forever. Two years earlier* the joint occupation of the country had, by resolution of Congress, come to an end. An appropriation was made for a military station on the line of com- munication to Oregon, and, to encourage immigra- tion, the Secretary of War was authorized! to fur- nish all applicants who designed to emigrate to Oregon, California, and New Mexico with such arms, munitions, and stores as might be required. The treaty of 1846 settled all controversy with Great Britain respecting title to the country. On the day when California was admitted the northwestern boundary of Texas was settled ; Texas ceded a large region of country to the United States for ten million five per cent, stock, and Congress organized the Territories of New Mexico^ and Utah.§ The franchise was limited, as usual, to white men. In New Mexico the white population clustered about a few old Span- ish towns; in Utah it comprised the new Mor- mon settlements at Salt Lake. By the organiza- * April 27, 1846. t March 2, 1849. X Population, 1850,61,547. § Population, 1850, 11,380. 348 Civili{atlon Trending IVestward tion of Utah and New Mexico the last link of local civil orovernment between Maine and Call- o fornia was completed. Except the unorganized Indian country, every foot of American soil was now subject to the law of State or Territory. Of States there were thirty-one; of Territories, five. The line of the Missouri Compromise divided the public domain into free and slave soil. Geo- graphically, the division was equal, except the southern part of California. This extended below the line. Three - quarters of a century had now passed since the Declaration of Independence. Popula- tion had increased from two and a half to twen- ty-three millions, and the public domain from less than nine hundred thousand to nearly three million square miles. During this time the centre of population had moved westward nearly four miles, on an average, each year. The frontier had reached the Pacific, but in the middle of the con- tinent there lay a wilderness, more than a thou- sand miles wide, whose eastern edge was in Iowa, whose western was at the Nevada mountains. The ceaseless tide of immifjration had reached the Indian tribes, had surrounded their best lands, had extinguished their titles, and had compelled them to migrate into the Indian country. About the middle of the century the white man and the Indian stood face to face in the centre of the con- tinent, disputing for its sovereignty. The history of the tribes east of the great river during the first half of the century was to be repeated west of it 349 Cousfitutional History of the American People during the second half. No political party had raised a voice for the Indian, and but one State had made it possible for him to become an Amer- ican citizen.* Within a few years foreigners had begun to ar- rive in large numbers.! Nine-tenths of the popu- lation were, however, native-born ; yet the number of foreigners in the country was nearly equal to its population at the outbreak of the Revolution. Native-Americanism discriminated against the for- eigner, but its force was impotent, except in the slave-holding States. | It followed that the North- ern States and Territories profited by their com- ing, and in the Northwest there was rivalry among the States to make them welcome. § Gradually some parts of the West, as in Wisconsin, came to con- sist largely of foreign settlements. The laws were printed in German in several States, and news- papers in the language of the new-comers began to appear. The Irish did not go West. They preferred the cities and towns of the East, but many of them found temporary employment on the railroads and canals in course of construction all over the North. Their sons were sent to school, and the next generation of Americans included them among its successful merchants, doctors, law- * Wisconsin, constitution of 1848, Art. iii., Sec. i. t Since 1841. + See the debates in the Louisiana Convention of 1845, '^i the Kentucky Convention of 1849, 'ind in the Virginia and Alaryland conventions of 1850. § See the Wisconsin Convention debates of 1847 and the de- bates in the Convention of Michigan in 1850. 350 Building Up the Cities of the [Vest yers, preachers, and politicians. The Germans wanted farms, and therefore they passed west- ward, locating all the way from New York to Iowa. Canadian immigrants located near the great lakes engaged in farming, and, to a larger extent, in milling and in starting great lumber industries. A few Englishmen and Scotchmen settled in the South, became prosperous plant- ers and earnest advocates of slavery. Their sons usually entered politics and became highly influ- ential. The Irish, the Germans, the Scandinavians, and the Canadians sedulously avoided slave soil. They were men who had to work for a living. The number of cities containing eight thousand people, like the urban population, had doubled in ten years. New York, the largest city in the country, contained a little over five hundred thou- sand people.* No longer was the increase in city population limited to the Atlantic seaboard. The large towns in Ohio — Cleveland, Akron, Columbus, Dayton, Cincinnati ; in Indiana — Fort Wayne, In- dianapolis ; in Michigan, Detroit; in Wisconsin, Milwaukee ; in Illinois — Chicago, Joliet, Peoria, Quincy ; in Iowa — Dubuque, Burlington; in Mis- souri, St. Louis and Kansas City — were gaining more rapidly than the towns of the East. They were fast becoming manufacturing centres, and around them lay rich farms and near them pros- perous villages. In these the conspicuous buildings were the school-house and the churches ; and in the * In 1850, 515,547. 351 Consfitiitioiial History of the American People larger towns, these and the factories. The houses in the West were generally of wood. In the East, brick and stone had been commonly used since the country was settled. Throughout the North, in the New England and New York belt, the dwell- ing-houses were usually of the New England style, built of wood, painted white, with green blinds. In the South, the richer planters lived in commodious mansions, whose architecture would now be called colonial. Both North and South abounded in log- houses and unpainted one-story cabins. Wealth was the dispenser of social rank ; less was made of ancestral distinctions than now. It was a new country, and the most populous cen- tres were not two hours' trav^el from wild lands or primeval forests. Few homes had the luxuries now common. If there were rugs or carpets, they were mostly home-made. Rarely were there pict- ures or that miscellaneous collection of orna- ments we call bric-a-brac. Wall-paper was a luxury. Organs and pianos were almost unknown. To own a melodeon or a dulcimer was evidence of wealth and elegance ; to play either gave distinction. Rarely did a church have an organ, but the leader of the choir had a tuning-fork. As yet no church was struggling over the question whether to call a minister or to buy a pipe -organ. Churches were usually built by local carpenters, who donated their work. These buildings were barren of ornamenta- tion, were never elegant, and rarely comfortable. The building was one vast room, planned to contain the preacher and his listeners. The early churches 352 Early Religious Practices of tlje People were not heated. With prosperity came huge box- stoves, long enough to burn four-foot wood. Usu- ally the stoves were set near the doors, in a location conveniently accessible to the wood-pile. The sinu- ous stove-pipe ran near the ceiling, the full length of the church. Forests were consumed, but a church was rarely warm. There were no separate rooms or adjoining buildings for Sunday-schools or church entertainments. Indeed, except the too -frequent lottery, by means of which the church was built or the minister paid, church entertainments were quite unknown. In summer-time, betwixt haying and harvest, or in the autumn, after the harvest was gathered, here and there over the country might be heard the voices of great camp-meetings. About the time when Lincoln was first a candidate for the Assembly these meetings were religious caravansaries. Gradually the Presbyterians, who seem to have originated them, abandoned them to the Baptists and Methodists. In many parts of the country they were relied on as the only prac- ticable method of bringing the people together for religious worship. They were attended, not in- frequently, by all the population within a circuit of fifty miles. Amid profound and irrepressible ex- citement sermons were preached which strongly moved the listeners, and which lingered long in the memory as events of a lifetime. Some of us who remember in our school-readers William Wirt's touching description of the blind preacher may have wondered in our mature years whether that majestic figure which Wirt drew I— z 353 Constitutional History of the American People existed only in his fancy. But as we retrace the century and revisit its eventful scenes, we hear and see many such leaders of the flock as Wirt describes — earnest, trustful, eloquent men, now for- gotten, like the multitudes who gladly heard them. Not Congress alone ; not Presidents and courts and Governors and Legislatures; not orators like Henry and Ames, Webster and Clay; not inventors like Fulton and Goodyear and Morse and Singer; not the poets and the historians and the journalists — but also the rural preachers, the circuit-riders, the faithful priest, the voices crying in the wilderness — these moulded democracy in America. All these pass before us as we go back to the days of small things, the gray days of work and pioneering. At the middle of the nineteenth century democ- racy in America was encumbered with more slaves than the entire population numbered on that April day when Washington became President. Scattered over the land were more than four hun- dred and thirty thousand * free persons of color, everywhere unwelcome. Slave property in the border States was becoming insecure and the black code yearly more severe. The constitutions and laws of the Southern States were graduall}'' mak- ing emancipation impossible. Few Northern peo- ple migrated to the South for permanent homes; fewer Southern people sought homes in the North. The Union consisted of two peoples, separated by a compromise boundary. They did not know one * 434.495- 354 California the Ke^y stone of Power another well. Far in the West lay one State whose composite people had recently made a con- stitution which contained both Northern and Southern elements. California was free soil, and the men who made its constitution and laws repre- sented by birth nearly every State in the Union. Was this State, that broke the balance of power in the Union, indicative of the goal to which democ- racy in America was tending.? Free labor had made this State and won its admission, for it would not compete with slavery in the gold-mines. CHAPTER XII A PEOPLE WITHOUT A COUNTRY Every nation in history, at some period of its career, has been an oppressor. The oppressed have not infrequently been as numerous as the oppressors, sometimes more numerous. Usually the relation between the two groups is that of master and slave, but the slave, being property, is protected by the law of things.* As a human being he has few rights, or none. As property he must have an owner, and be answerable, as assets. By law he may be real or personal prop- erty. Slave codes, in whatever nation, guard him as long as he is productive or profitable, but their dominant purpose is to prevent him from exercis- ing the rights of man. He is denied every right except the right of things. He must be owned, but cannot own ; he must be protected, but cannot protect himself ; he must support the State, but cannot participate in its organization or control. He must be known, but cannot be taught. He has no rights ; another has rights in him, to him, over him. Only by custom can a slave be called he or she. Property is impersonal. * The principal authorities for this chapter are the colonial laws and ihc laws of the several States on the subject, from 1800 to 1850. 356 The False Tenets of Democracy But man makes the law for man ; property the law for property. In spite of the law of things, slaves have always tended to come under the law of persons. The affection of the master, or some great personal or public service done by the slave, might work emancipation. Or a person of the same race as the slave might not be a slave in another country. Thus inheriting a man's rights, his descendants would be freemen. Democracy in America, during the first century of independence, exhibited the anomaly of being slavocracy. Its excuse was the common one of the heir-at-law; its real defence was the lust and the enjoyment of riches and power. In some form slavery existed in every colony, though it ceased first in those of the North, and chiefly on account of the climate. Had the sunny, semi- tropical climate of Florida and South Carolina ex- tended over New England, the abolition of slavery would have been advocated farther north. Even our morality is much a matter of latitude. Not until the eighteenth century was nearly past did the people of New England,* New York, Pennsylvania, and New Jersey arrive at the con- clusion that slavery was unprofitable. Then they provided for its gradual abolition. Their morality * In Rhode Island, negroes born after 1784 were free; in Con- necticut, after 1797 — slavery abolished, June 12, 1848. Slavery was abolished by the constitution of Vermont, 1777 ; of Massa- chusetts, 1780; of New Hampshire, 1783. Gradual abolition was effected, b}^ statute, in Pennsylvania, 1780; New York, 1799; New Jersey, 1804. In New York, by act of 1817, slavery was abolished after July 4, 1827. 357 Const it ufioiial History of tJje American People sustained them during this trial, just as the moral- ity of people in States farther south sustained them, at the same time, in making their slave codes more severe and their laws permitting emancipation less liberal. Until the adoption of the national Constitution the slave was not a political factor in American democracy. The " federal number," as the " three- fifths " clause was called, combined economics and politics. Climate forbade African slavery in the Northern States, and it there ceased to be an economical before it became a political element. Had it not been abolished in the North it would hardly have gained importance as a federal factor. Men may outwit a constitution ; they cannot re- sist climate. In the year when the Constitution went into operation there were nearly sixty thou- sand free persons of color * and nearly seven hun- dred thousand! slaves in the country. A little more than one -twentieth of the slaves were in Northern States ;| about three-fifths§ of the free persons of color were in the South, and of these fully three -fourths were in Delaware, Maryland, and Virginia. The right to emancipate a slave was incident to the right of property, but the exercise of the right involved questions of pub- lic policy. Was it public policy to encourage * 1790 — 59,527. 1 1790 — 697,681. \ New Hampshire, 158; Rhode Island, 948; Connecticut, 2764; Pennsylvania, 3737 ; New Jersey, 11,423; New York, 21,324. § Kentucky, 114; Tennessee, 361 ; Georgia, 398; South Caro- lina, 1801 ; Delaware, 3899; North Carolina, 4975; Maryland, 8043; Virginia, 12,866. 358 Public Opinion in Slave- Holding States it? Was it public policy to restrict it? Could the emancipator be allowed to endanger other property by emancipating his own ? But could he not emancipate his own ? He could sell it, ex- change it, bequeath it, mortgage it, lend it, nourish it, starve it, and in some cases put it to death and not be indictable for homicide. Obviously, in a slave-holding State a free negro was an anomaly. Public policy made his presence unlawful, and went as far as prudence dare to make it impossible. The question of emancipa- tion was sure to come to the front whenever a slave-holding State should meet in convention to make a new constitution. But slight record re- mains of the debates on this question till after 1840, although as the half -century closed it was exhaustively discussed in Kentucky, in Maryland, and in Viroinia. There the result of the discus- sion was inevitable. As slave property in a border state was insecure, public policy dictated that everything be done to make it safer. Should emancipation be permitted ? Should the Legis- lature be forbidden by the constitution to allow the cessation of the relation of master and slave ? Yet how could the restriction be imposed if a slave was lawful property ? May a man not do as he wills with his own ? The result of the struggle was a compromise, as in Virginia in 1850,* which forbade the Legislature to emanci- pate slaves, but, at discretion, it could impose re- * Constitution, 1850, Art. iv., Sees. 20, 21. 359 Constitutional History of tlje American People strictions on the power of slave-owners to do so. Public opinion did the rest. This may be said to have been the attitude of slave-holding States towards the question of emancipation in the mid- dle of the century. Free negroes, at the opening of the century, were in much the same plight all over the country. New Hampshire excluded them from the militia bylaw,* and every other State, either by law or by the con- stitution. Massachusetts compelled them to re- port for militia duty, under heavy penalty, but as- signed them to menial duties about the officers' quarters.! Occasionally their natural love of music, and their capacity to produce it, found them a more favored service as drummers or trumpeters. In 1788I Massachusetts forbade Africans to tarry in the State longer than two months, under penalty of hard labor. Exception was made for the citi- zens of Morocco, with whose Emperor a treaty ex- isted, but none was ever known to immigrate to Massachusetts from that country. When the nine- teenth century began, the act of 1703 was still in force in this State, requiring the emancipator of a slave to give fifty pounds security to the town treas- urer, to prevent the enfranchised from becoming a public charge. In other States the amount varied, but the general character of this law remained. On every side the free negro encountered de- grading restrictions. His certificate of emancipa- tion must be registered and his own copy be signed * Act of December 28, 1792. t Laws of 1699, p. 309. X March 26th. 360 The Penalties of Emancipation by two justices of the peace.* Without the copy- he could not remain in the county, nor travel out of it, under penalty of fine, imprisonment, or, often, of being claimed or sold as a slave.t Registration of the certificate was, however, seldom required, for obvious reasons. The free negro, like the slave, was rarely able to read or write, and as his habits were not those of an intelligent white, he was not accustomed to the care of papers. His certificate was easily lost, or stolen and destroyed. Unable, then, to prove his emancipation, he was forced back into slavery. If his case reached a court of jus- tice, he could not be a witness, for no negro or mu- latto, free or slave, could give evidence in a case in which a white man was a party.| Thus it fol- lowed that all over the country free negroes were constantly being seized as slaves. Their migration early became the subject of cruel laws. If emancipated, they must leave the State within a prescribed time, usually not over three months. But whither could they go ? Every man's hand was against them. If they went to another State, they would be arrested, examined, fined, imprisoned. On discharge, if caught within thirty days, they would be condemned to hard labor for life, or to be sold as slaves.§ Every State, * New Jerse}', act of 1838. Ohio, acts of January 5, 1804, and February 27, 1834. Illinois, act of March 30, 1819. t New Jersey, acts of 1838, Elmer's Digest ; Georgia, December 26, 1835; Louisiana, March 16, 1842. X Acts of Ohio, January 25, 1807; Indiana, January 28, i8i8; Maryland, December 31, 1801. S Kentucky, acts of February 14, 1846; March 24, 1851. 361 Constitutional History of tJjc American People slave or free, objected to their coming.* If near slaves, the free negro might excite an insurrection ; if among whites, it was said he was sure to become a vagrant and a criminal. Did not the reports of prisons and penitentiaries prove that more crimes were committed by negroes than by whites, in pro- portion to the numbers of the two races ? Possibly, was the reply; but the negro is not wholly to blame. What can be expected of a people whom it is a penal offence to teach even to read ? Throughout the broad land were tens of thousands of school- houses, yet no negro dare enter one, nor would any school dare to admit him, unless it be one kept by some fanatical Abolitionist. Very proper, all this ; for the free negro for ages has proved his incapacity to learn. Point to one negro, in all his- tory, who was a scholar or an artist, a painter or a poet. God intended him to serve others, and gave him a black skin to mark him and his de- scendants forever as the inferior race. Therefore, * See acts of the following Legislatures concerning this sub- ject: Ohio, act of January 25, 1807; excluded from the census by act of January 28, 1817. Illinois, act of March 30, 1819. The act of Delaware, January 25, 181 1, forbade them to enter the State, subject to a fine of ten dollars a week for remaining, or to be imprisoned and sold. Acts of February 16, 1849, and March 5, 1851. Acts of Maryland, 1806; March 14, 1832; De- cember, 1829. Acts of South Carolina, December 20, 1800; De- cember 20, 1825; December 19, 1835; December 18. 1844. Acts of Kentucky, February 23, 1808; February 24, 1846; made a felony by act of March 24, 1851. Acts of Tennessee, December 16, 1831 ; December 21, 1851. Mississippi, acts of June 18, 1822 ; December 20, 1831 ; February 26, 1842. Arkansas, act of Jan- uary 20, 1843. The qualifying act of Missouri, of January 7, 1825, and the excluding act of February i6, 1846. 362 Increase of Free Negroes let the free negro — the worst of all negroes — go elsewhere ; forbid his coming into this State, and, if he persists in coming, make an example of him. It is rather curious that debates of this kind were heard oftener and at greater length in the free States — as in New York, in 182 1, when the consti- tutional convention was discussinor whether to limit the suffrage to white men; in 1838, in Pennsyl- vania; again in New York in 1846; in Iowa in the same year; in Illinois and Wisconsin in 1848; and in Ohio in 1850. No Southern Legislature or convention before 1868 ever debated the extension of the suffrage to the negro, save Tennessee in 1834 and North Carolina in 1835, which discussed the abrogation of his right to vote under their first constitutions. It was bad enough to suffer an occasional case of emancipation. To a Southerner living before the war negro suffrage was fanaticism. Yet the number of free negroes increased, and, strange to say, quite regularly. For every one in the country in 1790 (59,527)* there were two in 1800 (108,435), three in 1810 (186,446), four in 1820 (233,634), five in 1830 (319,599), six in 1840 (386,293), and seven in 1850 (434,495). This was a greater rate of increase than that of the white population, which, on the basis of the number in 1790 (3,172,006), was one and one-third in 1800 (4,306,446), one and two-thirds in 18 10 (5,862,063), two and one -third in 1820 (7,862,166), three and one-third in 1830 (10,537,378), four and one-third * These figures are taken from table i., ninth census, 1790- 1870, pp. 4-6. Const H lit ional History of the American People in 1840 (14,195,805), and nearly six and one-third in 1850 (19,553,068). It was a higher rate also than that of the slave, which, as compared with the number in 1790 (697,681), increased one and one -third by 1800 (893,602), One and five-sixths by 1810 (1,191,362), two and one -half by 1820 (1,538,022), three and one -third by 1830 (2,009,- 043), three and five- ninths by 1840 (2,487,355), and four and five-eighths by 1850 (3,204,313). Yet. with the increase of free ne2:roes the laws and public sentiment against them became more and more hostile. Emancipation in some States was regulated, practically, by a jury, and in nearly all was limited to persons in middle life who were fully capable of taking care of themselves.* Vir- ginia, in 1836, appropriated eighteen thousand dollars to remove them from the State.! Various schemes were proposed to secure a place of de- posit. Colonization in Liberia and Africa was the favorite, but the free negro showed slight desire to be returned to the Dark Continent.^ From first to last African colonization was a failure. Might not the Pacific coast offer a retreat .?§ It was too ^'^ Acts of Louisiana, January 31, 1827; Civil Code, Art. 185. North Carolina, act of 1837 (Iredell and Battles' Revised Statutes, p. 585). Forbidden by South Carolina, act of December 17, 1841. Tennessee, acts of November 13, 1801 ; February 5, 1842. t Act of March 23d. X Tennessee, act of November 26, 1833, authorized the State treasurer to pay ten dollars for each negro who was removed to Africa by the Colonization Society. The joint resolution of the New Jersey Legislature, December 30, 1824, favoring colonization is typical of the attitude of the States towards free negroes. § Act of Virginia, December 23, 1816. 364 Ostracism of the Free Negro far away to be neighbor to any of the States ; yet it belonged to them. Why not remove the free black to the Oregon countr}^? Like other im- practicable schemes, this failed, and the States were left free to dragoon the unfortunates into miorratinp' — somewhere. The result was the steady drift of this human flotsam and jetsam into the free States, and special- ly those along the border. From the Delaware to the Mississippi the outcry against negro invasion was heard for twenty years. So, too, in Louisi- ana, when, towards the close of the civil war, it was proposed to put the right to vote within reach of those negroes who, in the opinion of the Legislat- ure, might with safety to the State be intrusted with it on account of military service, the payment of taxes, or intellectual fitness.* Every slave-holding community from the dawn of history has lived in constant fear of a servile insurrection. The Spartans solved the problem by a periodical slaughter of their slaves. The Ro- mans attempted to solve it by making the slave- owners individually responsible for the safety of the State, and to this end the master's will was made law. Between him and his slave the dis- tance was measured by no human tribunal. American democracy was no exception. Its Southern portion lived in fear of an uprising. Against this every provision of the black code was aimed. In substance the plan was simple enough — * Constitution of 1864, Title iii., Art. 15. 365 Constitutional History of the American People to keep the slave an animal and to deprive him of all means of self-defence. It became necessary to include the free negro in that plan. He, too, was forbidden to carry arms without the consent of a number of slave-holders.* To teach him was an offence punishable by heavy fiines.t Free negroes could not assemble for any purpose between sun- set and sunrise, nor at other times for religious purposes unless in the presence of at least five slave-holders. I The preacher must not sow sedi- tion. In brief, free negroes were put under the same police regulations as slaves. § In many respects they were worse off, because the slave was property, and enjoyed the stern pro- tection that property always receives. The free negro could neither protect himself nor, in many cases, find protection in the law. Persecution drove many to select a master and live as slaves — who, at least, had food, clothing, a cabin, and a protector. The ceaseless persecution of an ex- quisite system concentrated its torments upon this people without a country. They could not buy from a slave nor sell to one, nor be found in slave quarters.il No slave or free negro could lawfully * The Delaware act of 1806 forbade him to keep a dog or a gun; that of February 10, 1832, forbade him fire-arms; North Carolina, act of January ir, 1841. + Missouri, act of February 16, 1846; Virginia, act of April 7, 1831 ; if leaving the State to be educated, they were not permit- ted to return, by act of April 7, 1838. \ Virginia, act of March 15, 1832 ; South Carolina, act of De- cember 20, 1800. § Georgia, act of December 7, 1807. II North Carolina, acts of January i, 8, 9, 1845 : Georgia, act of December 21, 1839; Alabama, act of January 16, 1832. 2,66 The Pitiable Plight of the Free Negro administer medicine.* If a free negro sought to learn a trade, no one dare teach him. If a person hired one as a mason or a carpenter, the penalty was a fine of two hundred dollars.! There remained but one avenue of escape, and this led out into the wilderness. On a piece of abandoned land the free negro built his wretched hut, a strange, pitiful combination of savagery and civilization. How he existed he alone knew. Whether in the North or in the South, he dwelt apart from men, like the leper in Israel. Every offence committed in the region was attributed to him. If he raised a crop, the owner of the land compelled him to move on. If his chicken-yard prospered, his increase was at once attributed to the robbing of some white man's roost. Nothing good was credited to him. His children grew up wild. No teacher dare show them a book or teach them a letter. As they straightened their bandy- legs and shot up from infancy, they fished and stole and became the scavengers of the district. A selfish or pitying soul might take them to service, but with the almost inevitable result of finding them utterly untrustworthy, worse than slaves, and fit only for the whipping-post. Often they married slaves, and thus drifted back to the condition of their ancestors and stamped it upon their pos- terity. Towards the close of the half - century, many * Virginia, act of January 28, 1843. t Georgia, act of December 27, 1845 ; Alabama, act of January 16, 1832. 367 Constitutional History of the American People free negroes were in service on the sailing-vessels and steamers plying in the Atlantic coast -trade and down the Ohio and Mississippi. Their con- dition was far better than that of most of their race. But as soon as the vessel came into a South- ern port the process of persecution began. Black freemen ran the vessel and brought it to the dock. There, black slaves, often under the whip, handled the cargo. The contrast did not require much education in the slave to brinsf his mind to a conclusion. A servile insurrection quickly over- whelmed his neglected soul. Escape, be free, be a man, be clothed, be fed, be paid, and be like those of his race before his eyes ! He could not withstand the temptation. He planned escape. A free negro was ever at hand as a confederate. The slave was secreted on board. He often came North concealed in a bale of cotton, or even nailed in a box. Helpless, half dead with fear, he had been tumbled into the hold. But the long voyage was towards the north star. What agonies he endured of hunger, cold, and thirst, or the more fearful fate of being stood on his head in the accident of stowing away the cargo ! Few escaped, but hundreds wanted to ; there- fore the laws respecting free negroes on vessels were increased in severity. Florida, in 1849,* for- bade vessels having free negro crews to anchor nearer than five miles to the city of Appalachicola.t Seven years before Louisiana had forbidden free * January 13th. t South Carolina, act of December 20, 1825. 368 Conflicting Interpretations of the Law negroes to come in on any boat* If found on shore, they were at once to be put in jail till the boat left port. On the arrival of a vessel with a crew of free negroes, the harbor -master informed some justice of the peace, who was alert to have proper warrants ready. t If one of the free negroes returned, he was liable to imprisonment for five years. Thirty days after his discharge, if found in the State, he would be imprisoned at hard labor for life. A fine of a thousand dollars was imposed on the person who carried a slave to a free State. As negroes look much alike, a free negro might easily be claimed as a slave. The North accused the South of selling free negroes into slavery under pretence that they were runaway slaves. The South accused the North of carrying away slaves as free negroes. Complaints by individuals easily became the ground of general accusations. Truth, and also violations of law, existed on both sides. As soon as the sacred realm of law was invaded. Governors and legislators roused up, not so much to repel the invaders as to defy one an- other. The Governors of several Northern States refused to deliver up certain runaway slaves as fugitives from justice. The Governors of several Southern States refused to deliver up certain free negroes who had been seized as slaves. Long and learned were the references to precedents — legislative, constitutional, historical, and judicial. Longer, and no less learned, were the resolutions * Act of March i6th. t Louisiana, act of March i6, 1842. I. — AA 369 Co/isf/fiif/oiLil History of the American People passed by contending Legislatures, and all with one, and only one, result — each party was the more convinced that he was right. Legislation recrimi- native in character followed. In the North it was popularly called the personal liberty bills ;* in the South it was entitled acts for the further protec- tion of slave property, and for other purposes. The legislative contest began about 1835 and in- creased in vehemence til) the end came — thirty years later.! The case of the slave " Isaac," the property of one Colley, a citizen of Virginia, renewed the con- test.ij: He had been conveyed to New York in a vessel that ran regularly between the two States. Governor Seward refused to return him as a fugi- tive from justice, on the ground that, as slavery was contrary to the law of nations, the State of New York was under no obligation to deliver him up to the State of Virginia. Virginia replied that the case did not arise under the law of nations, but under a provision of the Constitution of the United States. Nor was it an ordinary provision, but one resulting from a compromise on the mak- ing and support of which the existence of the Union depended. It was not long before other slave-holding States * New York, May i8, 1840; see Virginia, act of March 18, 1 841, passed as a rejoinder ; also, act of March 27, 1843. t See Louisiana resolutions of March 16, 1842; Georgia res- olutions (in reply to the Massachusetts General Court), Decem- ber 28, 1842 ; also of December 25, 1843. X See Virginia resolutions in ?-e, March 17, 1840 ; also, the res- olutions of the New York Assembly in re, April 1 1, 1842. 370 The Free Newo Admitted to the Franchise '-fe fell into line with Virginia. Resolution after reso- lution appeared, and threats of disunion were freely and formally made. The Missouri Compromise was effected at last when that State, by a solemn public act, promised not to exclude free negroes and mulattoes who were citizens of any State. In the year of this promise, 1821, New York revised her constitution and extended to free negroes the right to vote.* This provision was in substance like the act of 181 5 respecting such persons. Having proved to the Mayor that he was a freeman and a freeholder having real estate worth twenty pounds, or that he was a tenant paying a rent of forty shillings an- nually, and also paying a State tax, the free negro in New York City, in 181 5, was entitled to receive a certificate from the Recorder, which entitled him to vote. The constitution of 182 1 increased the property qualification to two hundred and fifty dol- lars, and required him to reside in the State two years longer than a white man, but it opened the right of suffrage to him. This provision by New York proved in time to be of far greater impor- tance than the Missouri Compromise. It forced the issue on which the Union depended. It was the right of New York, as of every State, to prescribe qualifications for its citizens. In 1846 the State repeated the provision in its third constitution. It stood alone among the States. Massachusetts, New * The first discussion of the extension of the suffrage to ne- groes occurred in the New York convention of 1821. The chief advocate of the innovation was Rufus King. 371 Constitutional History of tJjc American People Hampshire, and Vermont allowed the free negro to vote, with a more liberal suffrage qualification. Elsewhere in the Union the right to vote was denied him. How was this condition of affairs to be harmonized with the national Constitution, which provides that " the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States " } Or with the pro- vision requiring the delivery of persons held to service in one State escaping into another. As a negro slave did not differ in appearance from a negro freeman, and as these were increasing in number at the rate of two a day, and as most of them, like ancient Gaul, looked to the North — whither also a stream of fugitive slaves was stead- ily flowing — it was impossible, under the laws, the constitutions, and the public sentiment of the time, to discriminate always between freeman and slave. The commonwealths were, therefore, in confusion over the question of citizenship. But Northern sympathy, such as it was, reached out only to the fugitive slave. The free negro was as unwelcome North as South.* He lived on the outskirts of towns and villages — the American Ishmaelite. Every man's hand was against him. Schools existed, but not for him or his children. Men who were conductors on the underground railroad, or who kept its way-stations, were not al- * Northern sentiment on the subject was typically set forth in the Pennsylvania constitutional convention of 1837. It runs throuti;h the thirteen octavo volumes in which the debates of this convention are preserved. 372 Persecution for Justice Sake ways anxious to have negro children attending the same schools with their own. Moreover, most of these schools were pay schools, for the free public- school system was not inaugurated until about 1842, and was then planned solely for white chil- dren. Nor did hostility cease with the exclusion of negroes from the rate schools and public schools ; it was equally fierce at the prospect of schools for negroes only. Reference need only be made to the indignities heaped upon Prudence Crandall, a member of the Society of Friends, who, in 1832, established a school for young women in Canter- bury, Connecticut. She admitted one colored girl, and the phials of public wrath were at once emptied on her head. In town-meeting, her school was de- clared a public nuisance, for she announced that colored girls might attend. She was insulted, slan- dered, and persecuted in ways that only Yankee genius could devise. Her house was frequently assaulted, her well was filled with filth. She was boycotted by the neighborhood. And who were her neighbors ? Lawyers, doctors, farmers, me- chanics, clergymen, and the United States district judge. What horror filled these good people at thought of a negro school right at their doors ! She was denied a hearing at town-meeting ; nor were her friends, among whom were Arthur Tap- pan and Rev. Samuel J. May, permitted to speak in her behalf. In spite of concerted opposition and persecution, she opened her school with about twenty pupils. Then local wrath took the form of 373 Constitutional History of the American People law. One of her neighbors carried an act through the Legislature making it a penal offence to estab- lish a school for the instruction of colored persons not inhabitants of Connecticut, or to harbor or board any such persons, without the written con- sent of the select-men of the town.* When news of its passage reached Canterbury, bells were rung for joy and cannon fired. On the 27th of June, Miss Crandall was ar- rested and bound over to appear at the Au- gust term of court. Would Connecticut send a woman to jail for daring to teach a negro girl to read } She was placed in a cell just vacated by a murderer. Here she spent one night In the morning bond was given, and she was free. Her imprisonment wrote the infamous law on the pub- lic conscience — if such thing there be — and soon was verified the truth of a later and now famous saying, " The best way to get rid of a bad law is to execute it." She was tried, and the jury brought in a verdict asfainst her. But this was not the end. She again attempted to resume her work, but persecutions redoubled. One midnight her house was attacked by a mob and left a ruin. Then, and not till then, did she abandon her work — the benevolent undertaking of teaching a few negro girls the elements of knowledge, that they might teach free negroes.! * Act of 1833, in Connecticut Public Statutes, 1835, Title 53, p. 321. + Wilson's Rise and Fall of the Slave Power in America. Vol. i., P- 237. 374 Discrimination Against the Free Negro The attitude of the North towards free people of color became more and more favorable, however, as the designs of slavocracy to extend its power over Texas and California were disclosed. Re- monstrance against slavery extension began in 1820, when Missouri sought admission, and was renewed when the question of the reannexation of Texas was proposed — the time of Miss Crandall's persecution in Connecticut. From about this time slave laws became more severe in the South, but the treatment of the free negro in the North be- came more humane. The changes are illustrated by the laws of Ohio. In 1804 a free negro was re- quired to record his certificate of emancipation in the office of the county clerk. No man could hire one unrecorded. In 1807 ^^e law forbade any ne- gro to settle in the State without giving bond for five hundred dollars to the county clerk. A free negro could not give testimony when one party was white. By the act of 1829 negroes were specially prohibited from attending free white schools in Cincinnati. Taxes paid by negroes were to be expended, at the discretion of the school trustees, for the education of black chil- dren, but they were not taxed for the support of the schools for whites. At this time a black man could not gain a legal settlement in the State. Ten years passed, and an elaborate fugitive-slave law was enacted, "to secure the protection pledged by the Constitution to the South." It was on the statute-books only four years and then repealed. Ohio was becoming slightly antislavery. Its Legis- 375 Constitutional History of the Atnerican People lature sent forth a joint resolution in 1S47 favor- ing the exclusion of slavery from Oregon, and one in the next year demanding its exclusion from whatever territory might be acquired from Mexico. It claimed that Congress had power to do this. In 1849* the Legislature sent forth a truly peni- tent resolution. As free persons of color had long been degraded and oppressed, Congress ought to give each of them eighty acres of land in some part of Mexico, set apart for these people without a country. On the next day the Legislature de- clared that Congress ought to abolish the slave- trade in the District of Columbia. That this repentance was genuine was proved, now, by the establishment of separate free schools for them, by the repeal of several discriminating acts,t and, further, by the passage of a law provid- ing, mirabile dictu, that when fewer than twenty black children resided in the school -district they might attend the white school, unless objection in writing should be made by a patron of the school or by a voter in the district.^ About this time the people of the State decided to call a convention to revise the constitution of 1803. It was a liberal-minded body of men in many ways, and its handiwork, completed in March, 185 1, continues to be the supreme law of the State ; but it limited the suffrage to white men. * March 23d. t February 10, 1849, repeal of acts of 1804, 1807, 1834. except the act excluding negroes from service on juries. t See also the act of February 24, 1848. 376 California and the Free Negro To extend it to free negroes, as some proposed, was thouo'ht both danorerous and deciradine. It would convert Ohio into an asylum for free blacks and runaway slaves. But, while the convention was in session, an incident occurred which sud- denly sharpened public sentiment. On the 6th of June, 1850, seven children and one grandchild of a free negro woman, named Peyton, were ab- ducted into Kentucky. Nine months later the Legislature instructed the Governor, Reuben Wood, to inquire into the crime and restore the children at the expense of the State. As the admission of California grew into a na- tional question, the State Legislatures divided — the Northern, like Wisconsin, demanding the extension of the Ordinance of 1787 over it; the Southern, like Alabama, declaring that the State would make common cause with other slave-holding common- wealths for the defence of the institution of slavery, because Congress had no power whatever over it.* Though California came in as free soil, its consti- tution excluded free persons of color from the franchise and barely missed containing an article * Resolutions favoring the admission of California and the limitation of slavery were passed by the Legislatures of — Maine, July 27, 1849; New Hampshire, January 4, 1849, July 10, 1846; New York, December 7, 1847, January 13, 1848, January 4, 1849; Ohio, February 25, 1848; Michigan, January 13, 1849, February 23, 1850; Wisconsin, February 8, 1849, June 21, 1848. Counter- resolutions were passed by the Legislatures of — Virginia, January 20, 1849; South Carolina, December 20, 1850; Georgia, February 8, 1850; Florida, January 13, 1849; Texas, February 11, 1850; Alabama, March 6, 1848 ; Mississippi, March 5, 1850 (the most elaborate report on the subject by a Southern Legislature). 377 Constitutional History of tbc American People wholly excluding them from the State. Confident that public sentiment would regulate the matter, and that no free negro would travel so far, the proposition was allowed to fall through. The attitude of California towards the free negro, in 1850, was typical of the attitude of the North. As slavery was forbidden there, the free negro was not a subject for legislation. A few soon found their way into the new State, chiefly as stewards on the Pacific passenger - ships and steamers. Gradually they established themselves on shore as servants, barbers, and occasionally as valets, but they did not venture into the mining -camps. Their appearance there would have started a white insurrection. The story of the struggles of the free negro is a painful one, yet he steadily gained ground dur- ing this half- century. This class multiplied so rapidly in Maryland that its presence — some seventy-five thousand — in the State became a most vexatious problem. The number of free neo'roes fell short of the number of slaves in the State only by fifteen thousand, and the two parts of the black population were within ten years of equality in numbers. The constitutional convention of 1850 was called, largely to solve the problem. It made no provision on the subject other than to forbid the Legislature to abolish the relation of master and slave. An effort was made, though unsuccessful, to incorporate a clause like that in the Virginia constitution of the same year, empowering the Legislature to relieve the common- -.78 Foreign Immigrants Cow the Negro Voter wealth of its free negro population " by removal or otherwise." * This was the typical attitude of the South towards the freeman of color. Thus, North or South, he was a man without a country. Though New York at this time contained nearly fifty thousand of this population — which in a State having manhood suffrage would give ten thousand voters — only about one thousand were voters; not so much because they lacked the constitutional qualifications as that they did not dare to vote. Hostility to the negro voter was intensified by foreign immigration. Few Irishmen felt con- strained to allow a negro to vote. As free schools overspread the land, particularly the North, the free negro had to deny himself fur- ther. Yellow-fever or the small -pox would not more suddenly and surely break up a school than the presence of a negro pupil. Nor has racial hos- tility of this kind yet wholly disappeared. In the far North — as in New Hampshire, Vermont, North- ern New York, and Michigan — a negro child was somewhat of a curiosity and was suffered to attend school in peace. A Chinese baby or a papoose would have been given the same passing atten- tion. But Northern patience with the free ne- gro's delinquencies was short ; perhaps shorter than Southern. Somewhat paradoxically, the ab- olition sentiment was strongest in the cold parts of Vermont, and the laws enacted against run- away slaves — the black code in general — were * Virginia, constitution of 1850, Art. iv., Sees. 20, 21. 379 Const it lit ioiial History of tijc American People most terrible in tropical Louisiana. Extremes met in Virginia. From the border States to the great lakes ran the various branches of the underground railroad. Thousands of fuf{itive slaves reached Canada over this line. Its mana2:ement baffled Governors, sheriffs, and constables. The men and women who kept its " stations " were among the most re- spectable and intelligent in their community. They held slavocracy, and its aiders and abettors, in contempt. They thought it a virtue to break the fugitive-slave law. They were the only peo- ple in the North who treated negroes as they treated other men and women. But their work was done in secrecy, often in fear, and under the cover of night; and sometimes, when the fugitive was in sight of safety, the law seized him and thrust him back into slavery.* * At the mouth of the sixteen -mile creek, in Erie County, Pennsylvania, lived a Whig farmer named Crawford. His house stood in a grove of locust-trees, a few rods from the beach of Lake Erie. He was an agent on the mysterious road, whose frightened dusky passengers were moved at night, secretly, from station to station. One evening in early autumn, at which time the Lake Shore country of to-day is radiant with the odor of the vineyards, and the Virginia creeper hangs in prismatic hues about the trunks of the oak and the fruitful chestnut, a peculiar knock was heard at Crawford's door. There stood a neighbor named Cass, an Englishman who had recently started a woollen mill near by. Mrs. Crawford assured him that the family was alone. He gave a low whistle, and a man timidly came out of the bushes and drew near. He was a fugitive slave from North Carolina. He was kindly received, was given his supper, and put to bed in the spare room. About two o'clock in the morning he was suddenly aroused. Another neighbor, John Glass by name, who had a foundry at the mouth of the creek, had re- •^80 strong Race Hatred in the North Hostility towards the free black was due in the North principally to racial prejudice. This showed itself in various ways. Negroes were forbidden to learn trades in the South except as their owner ported danger. The sheriff was in the village about a mile to the south, and in the morning would surely search Crawford's house, for he was known to be an Abolitionist, and was suspected of secreting slaves. The frightened negro begged to be taken at once across the lake, which is here about sixty miles wide. With Canada in sight, must he be dragged back into slavery.? The men were in doubt what to do, when Mrs. Crawford suggested that the negro go at once with Glass to his foundry, where he should be stowed in the bottom of a great wagon, be covered with frames and patterns, and be started at once for Erie, six- teen miles away. Glass often made the trip in his business, and, as he always started before daylight, his wagon would not excite suspicion. As soon as the negro was gone Mrs. Crawford called her eld- est son and bade him finish his sleep in the negro's bed. If the sheriff asked him any questions, he could say that he had not seen the negro and he had a bad cough. His younger brother was left in the bed where the two had been sleeping. Early in the morning the sheriff appeared, read his warrant, and began searching the house. He was compelled to be satisfied with the family's explanations, and went away, turning his horse's head towards Erie. Glass had some five hours' start, and was now rapidly approaching the city. He had stopped, as usual with travellers, at the half-way house, where he watered his horses, leaving them for a few moments while he got a hasty breakfast. He was about driving on when a farmer, who lived some miles to the east, now on his way home from Erie, drew up to water his team. He had left Erie about the time Glass had left his home. As it became light enough for him to read, he noticed here and there posted on the trees an offer of a large reward for the capture of one Ned, a runaway slave from North Carolina. The reward was larger than usual. As he was watering his horses it occurred to him to mention the reward to Glass, and, stepping forward, while talking, his eyes ran over the load of frames and patterns. Quickly he detected the negro beneath them. Knowing that Glass was an Abolitionist, for he himself was an equally ardent pro-slavery Democrat, he at 381 ConstiititioiLil History of the /Imerican People mic'-ht consent, for his own purposes.* Usually, on a large plantation, there were carpenters and cobblers and blacksmiths among the slaves, but rarely any one who could do a piece of work re- quiring skill. In the North no man wanted a negro apprentice, and, except at farm-work in the same field, no man was seen associated with a ne- once took in the situation. Discreetly concealing his discovery, he jumped into his wagon and started his horses rapidly towards his house and the constable's. Glass, with equal speed, started for Erie, to deliver the negro into the hands of a faithful captain, who could be relied on to take him across the lake. He sus- pected that the negro had been discovered and that the man would not hesitate to betray him for the reward. Meanwhile, the sheriff was galloping rapidly towards Erie, when he met the informer and the news he was seeking. Quickly agreeing about payment of the reward, he spurred on after the foundry- man. Glass had reached the dock and had driven into a shed, where, concealed from public view, the negro was quickly handed over to the captain. He was put into a dory, covered with tar- paulin, and rowed to a little sloop at anchor in the bay. Just as he was climbing on board, the sheriff appeared on the wharf, quickly detected the negro, and soon had him in his possession, chained and manacled. At once the bewildered negro was roughly started towards the South, was returned to his master, and lost in slavery. The reward, a small fortune for those times, was paid to the informer. Fifty years after the event its incidents were related to me by the woman who so zealously strove to give liberty to the wretched African. With old age had come total blindness, " but," said she, " my sight was not taken away before I was per- mitted to see slavery abolished. And more — though it is not for me to tell it — the blood - money received for that poor negro brought wretchedness to three generations of the informer's family, and, strange to say, was finally lost in speculating in Southern lands. 'Justice and judgment are the habitation of Thy throne ; mercy and truth shall go before Thy face.' " * By the Georgia act of December 27, 1845, to contract with a free person of color as a mechanic or mason, to erect or repair a building, was punishable by a fine of two hundred dollars. 3S2 Forcing the Negro from the Labor Market gro in work. Massachusetts complained, through its Legislature, in 1S21,* that free negroes were forced into Northern States, and specially into Massachusetts, where they became a disorderly, in- dolent, and corrupt population in the larger towns. Yet in these they were excluded from the schools, and from any kind of labor except that of the lowest grade. In New York, and Philadelphia also, the Northern cities in which they were most numerous, they were rigorously excluded from the schools, and as soon as foreign immigration set in and the Irish began to contend for occupation as unskilled laborers, the era of labor riots began, in which public opinion was outrageously on the side of the aggressors. It is not strange that the North catalogued free negroes as a part of the criminal class.! Nothing else was left to them than to play the part of social outcasts. The Massachusetts House of Representa- tives expressed Northern opinion in its resolutions against the substitution of free negroes " in occu- pations which, in the end, it would be more advan- tageous to have performed by the white native population."^ The Northern churches, like the Southern, tol- erated black skins in the congregation, chiefly be- cause there is no overcrowding on the road to heav- * Resolution of House of Representatives, June 4, 1821. t Tiiis is brought out in the discussion of negro suffrage in the constitutional conventions of New York in 1821 and 1846; in that of Pennsylvania in 1838. X Resolution of House of Representatives, June 4, 1821. 383 Constitutional History of the American People en, and competition for future rewards does not affect the social standing or the trade or the poli- tics of the world. An ebony face in the gallery was likely to put the missionary spirit of the society into a mild glow, and chanty takes pride in reach- ins: the outcasts. It followed that what little com- fort the free negro got in the North was chiefly of an ecclesiastical character. His theology was properly attended to. No man could listen to his petition to be allowed to learn a trade or to go to school ; but his quaint supplication, encouraged at prayer-meeting, was something of a sensation. His body and mind might be dark, but his soul, it was said, was full of light. Some of the congregation were puzzled how a person who could " wrestle so powerfully in prayer" could be so persistent a thief, so indolent, so useless; but probably it was all in fulfilment of sundry obscure references to Ethiopia in the prophecies. There was some contest among the various churches to enroll the object of so much attention from the prophets. The Sunday-school taught him to read, and thus he found an entrance into a hitherto forbidden world. He came with wife and children, and thus circumvented the State. Down to 1840 free public schools were not com- mon North or South. No Southern school ad- mitted a negro, and no Northern school welcomed him. As soon, however, as the free-school system was understood by the people, and this may be said to be about 1845, public policy demanded that all the children of the community should be made Fighting for Popular Education welcome.* It is now forgotten that serious, and for a long time successful, opposition was made to common schools. Their establishment was a pub- * Governor J. W. Dana, of Maine, in his message to the Legis- lature, Marcli 19, 1847, complains of the lack of public interest in the free schools. Connecticut practically established a common- school system in 1841. New Jersey attempted free schools, on a limited scale, under the act of February 12, 1817. Pennsylvania inaugurated a system by the acts of April 1, 1834, and April 15, 1835, but it did not prosper until the acts of April 11, 1848, and April 7, 1849. Delaware, by acts of January 28 and February 7, 1817, established a fund for the education of poor children. The African School Society of Wilmington was organized under the act of January 20, 1824. North Carolina established a school system by the act of January 1 1, 1841. In South Carolina, schools for the poor began under the act of December 11, 181 1, which was many times amended later; free schools began under the acts of December 19, 1836, and December 17, 1841, especially the latter act. In Georgia a general educational system was inaugu- rated by the act of December 28, 1838 ; see also acts of December 19, 1829; December 24, 1837; December 10, 1840. In Missouri, act of 1839. See joint resolution of Florida Legislature, relative to education, December 21, 1846. See free-school act of Louisi- ana, May 3, 1847; also constitution of 1845, Sec. 135. Kentucky began its school system under the act of January 29, 1830. See Tennessee acts of 1826, 1829, and 1835 ; also constitution of 1834, Art. xi.. Sec. 10. Mississippi inaugurated its common schools un- der the act of March 4. 1846. Arkansas, under the act of Feb- ruary 3, 1843. Ohio, act of January 30, 1827; a school system for whites, February 28, 1834; March 27, 1837; March 7, 1838. The act of March 23, 1840, abolished the office of Superintendent of Common Schools and authorized the Secretary of State to em- ploy a clerk at four hundred dollars a year to perform its offices. Separate schools for negroes were inaugurated under the act of February 10, 1841, and that of February 24, 1848. The Indiana Legislature, by joint resolution, January 9, 1821, recommended the appointment of a committee to draft a bill for a general system of education, " from township school to university," in accordance with the constitution, 18 16, Art. ix.. Sec. 2. See act of February 2, 1832. Illinois established free schools under the act of January 15. 1825. L— BB 385 Constitutional History of the American People lie issue from 1S35 to 1845. Tlic publie aeeepted them chiefly because they would enable the chil- dren to get on in the world more easily and suc- cessfull)- than their parents had done. Moreover, education was a panacea for the ills of society. Send the children to school, and vice and immo- rality would disappear. Through this open door of reform negro children in the North went to school, and, it may be said, almost as soon as the children of the poorer whites. In the South an entirely different idea of public policy prevailed — dominated by slavery. It ex- cluded the negro, slave or free, from every means of information likely to make him intelligent. He must not learn to read, nor be suffered to preach, except in the presence of white men. The camp- meeting, ever dear to the African heart, was for- bidden unless controlled by the presence of whites.* Slavery thus put a muzzle on speech throucrhout the South, and at last custom became not only a property of easiness, but an article of faith. A religious system rarely escapes becoming ty- rannical, because religion is usually the chief police system of the State. Public policy often dictates cruel laws, and religion rarely sets itself against the laws. The code found even more enthusiastic advocates in the pulpit than in the Legislature or the courts. This was inevitable in a religious sys- tem supported by the voluntary contributions of * For a typical piece of legislation on the subject, see act of Alabama, January 16, 1832. Slavery a Costly Institution slave-holders. Pro-slavery and apologetic sermons were not infrequent in the North. Clergymen are habitually legalists and conservatives ; therefore they preached obedience to the law, prayer for its repeal, and patience under its yoke. Meanwhile, a revolution was in progress. It must be admitted that modern Christianity has tended ever towards the emancipation of slaves. This has been partly due to sentiment, partly to a sense of justice, and largely to eco- nomic necessity. There may have been a time when slavery was profitable in Egypt, or even in the United States. It is difficult to fix the times, and in this country it ceased long before 1850. I know of no better proof of the unprofitableness of slavery than that produced in the Kentucky convention of 1849.* It was there shown that Essex County, in Massachusetts, produced as much as the entire State of South Carolina. The start- ling conditions that made this truth possible are clear enough now, but were realized by few. North or South, then. The world is slowly learning that freedom is cheaper than slavery ; those who have a conscience have always known that free- dom is better. During the first half of the nineteenth century every discovery, every useful invention contributed to the betterment of the free negro. As machin- ery was introduced, wealth increased, labor was in demand, and population was on the move, west- * See Chap, vi., Vol. ii. 3S7 Conslifiitioiial History of the American People ward. It is somewhat vague and paradoxical to say that the free negro participated in the general benefits of the time, after showing that he was ex- cluded from most of them. However, it is true. He gained slowly and lost nothing. Though wel- comed nowhere, he found his way everywhere. The new West frowned on him; but he went West. It was hard for him to get title to a piece of land. Even liberal Iowa made vigorous efforts to prevent his becoming a settler. Local claim associations, such as that of Johnson County of 1839, rigorous- ly discriminated against him, and for a long time made his residence in the Territory unsafe.* As the American world grew larger, and ceased, or tended to cease, being provincial, the people of the North let the free negro alone. It was a great op- portunity for him — indeed, the greatest that ever came to his race. As soon as he was let alone he began to prosper. There is a hint here for those who are seeking the solution of the race problem in America. As soon as the negro was suffered to earn his own living, like the rest of the world (who earn it), difficulties began to disappear. Legislatures ceased sending out resolutions in complaint of free- negro invasions. Remonstrances against negro children in the public schools became less common. A negro was seen here and there planing a board, shingling a roof, mending a shoe, or laying a wall. * See the Constitution and Records of the Claim Association of Johnson County, Iowa, with Introduction and Notes by Benja- min F. Shambaugh, A.M. ; 8vo, 196 pp. The State Historical So- ciety of Iowa, Iowa City, Iowa, 1894. 388 Softening of Public Feeling Towards the Negro A man thus engaged was not likely to belong to the criminal class. Public policy began to discover this simple fact, as the half-century drew to a close. Public opinion began to permit what it had long thought, " Give the negro a chance." Yet the priv- ileges accorded him in the North were, as yet, by sufferance rather than by law. A vague sense of economic necessity was putting the laws in their true light. They were fast falling behind the times. Everybody could find work in the North. This was the primary favorable condition. Had it been otherwise, the condition of the free negro would have been hopeless. If in the North he was seen with a gun, no one was terrified. Squirrels and ducks were plentiful. In the South arms were denied him under severe penalties.* There a free negro with a shot-gun suggested a servile insurrection. As the code grew blacker, so did the North — for its negro population increased more rapidly. Numerically, the gain was in the States north of the Ohio. From 1840 to 1850 there was scarcely any increase in the negro population of New England and the Middle States. In Massachusetts and New York it decreased. The lines of least resistance for the white and black alike ran into the Northwest. This was due chiefly to climate. Ohio, Indiana, Southern Michigan, and Illinois are warmer than Massachusetts or New York. Unconsciously, the * Acts of Delaware, February lo, 1832; Maryland, March 14, 1832; Virginia, March 15, 1832 ; North Carolina, January 11, 1841 ; Georgia, December 7, 1807. Nat Turner's insurrection (1831) was the immediate cause of severe laws on this subject in the South. 389 Coiisiitiitioiidl History of the American People negro was travelling along isothermal lines. It followed that opposition to him continued in the Northwest after it had ceased in New England, New York, and Pennsylvania. Objections heard in New York in 182 1 were repeated in Ohio in 1 85 1. They were heard in Wisconsin and Iowa in 1847; ^^ Illinois in 1848. But there is a new tone to the general discussion — a tone of greater toleration. It is heard in Michigan in 1850.* Selfishness is at the bottom of all this hostili- ty. This is illustrated in California.! The negro, free or slave, should be excluded, lest he deprive white men of a monopoly of the mines. This was exactly the spirit of Massachusetts in 182 1, of Pennsylvania in 1838, of Iowa in 1847. It was the spirit of slavery, for that is the spirit of selfish- ness on the most gigantic scale. It seems as if white men, in democratic America, during this half - century, denied rights to black men, lest the wealth of the country — social, political, industrial, and educational, be divided with them. A fateful step had been taken by the most power- ful commonwealth — New York — when, in 182 1, it made it possible for a negro to become a voting citizen. True, there was discrimination in the grant. The negro must have a clear freehold es- tate of the value of two hundred and fifty dollars ; must have been rated, and paid taxes on the es- tate, and have been a citizen of the State for three * See Chap, viii., Vol. ii., pp. 215, 235; Chap. ix.. pp. 249-254. t See Ch;ip. x., Vol. ii., pp. 297-304, 315; Chap, xi., pp. 316-330, 353-362. 390 Race Prejudice in California years. A white man could gain residence in a year, and was not required to own real estate or personal property.* But the negro was given a chance, and that changed the history of democracy in America. The influence of New York, in this respect, is clearly seen when California sought ad- mission into the Union. Recognition of nesfro suffrage might be delayed, but it must come in time. When, in 1821, Rufus King introduced the revolutionary provision into the proposed consti- tution of New York, he cited as sufficient author- ity the clause in the national Constitution declar- ing the equal rights of the citizens of the several States. In its consequences the New York inno- vation ranks in importance with the Emancipa- tion Proclamation and the abolition of slavery, for which it paved the way. So strong was race prejudice in 1850 that Cali- fornia only by a meagre majority escaped enrol- ment in the list of States which then excluded free persons of color,! Their exclusion, it was thought, could safely be left to public sentiment. At this time the act of California was of critical importance. Doubtless the State must be in- cluded among those of the time holding" most lib- eral ideas. It made its soil free, and, at least by the letter of its law, it excluded no freeman. It stands, therefore, as the embodiment of American sentiment at this time, and pointed the way by which things and men were going. It intimated * New York, Constitutions of 1821 and 1846, Art. ii., Sec. i. t See Chap. Xi., Vol. ii., p. 361. 391 Constitutional History of the American People that the time was at hand when it would be im- possible in America for half a million free people to be a people without a country. Before the change implied in this promise could be realized, all things pointed to a fierce struggle. Its nature was outlined in the debate in Louisiana* in 1845, and in Kentucky four years later; in the resolu- tions of State Legislatures relative to slavery ex- tension, and in the convergence of population on Kansas. These signs of the times pointed out that the impending struggle was between two systems of government — one founded on prop- erty, the other on persons. Primarily, it was a struggle for the extension of the franchise, for with the franchise go all rights known to free- men. On the threshold of this strus^gle between State sovereignty and national sovereignty, between free labor and slave labor, between suffrage extension and suffrage limitation, the commonwealths divid- ed into two groups. Public opinion in the North was shifting rapidly, and as yet was uncertain. The border States, Kentucky claimed, held the key to the future of the Union. The word "white," in all Southern and in most Northern constitutions, yet preserved the legal fiction that government was instituted for the exclusive benefit of a fa- vored race. This fiction continued the stern fact of history. There was, however, a new shade of color to the fiction. A third estate lay between * See Chap, xiii., p. 400. Northern Ameliorative Measures for the Negro the slaves and the slave-holders — the free negroes. They gravitated towards slavery in the South ; in the North, towards citizenship. As the half- century closed, their children were found in the free schools of New Hampshire, Vermont, Mas- sachusetts, New York, Ohio, and Michigan. In these States, and in Pennsylvania, Maryland, Wis- consin, and Iowa, occasionally negroes were suf- fered to work as mechanics, but as yet they pos- sessed little skill in the use of tools. Ao^es of slavery had robbed them of much of man's tool- using ability, but not wholly of his tool-using ca- pacity. On the emotional side of their religious nature they were inferior to none of the whites among whom they lived. Theirs was an anoma- lous condition for freemen in a democracy. Legis- lation in the South, keeping pace with public opin- ion, became more and more oppressive. In the North it slowly became remedial and helpful. In some degree the miserable condition of this class was mitigated by its ignorance of better things. It had never known opportunity. It had for ages known only the degradation possible in slavery. Free schools were organized just in time to bene- fit this class in the North. Negroes were suffered to attend lest they grow up wholly in ignorance and vice, and thus ultimately cost the State many times more than the expense of teaching them to read and write. Mechanical trade - schools were already thought of, but legislative notions respect- ing them were of a different order from those which called into existence the later technical 393 Constitutional Histo/y of the /I in mean People schools.* Socialism had not yet gone so far as to possess the public mind that the state owes to every citizen a bread-winning education. It may be said that whatever the state did for the free negro down to 1850, it did as a means of self- protection, not for love of the negro. Public schools were a form of public insurance against vice and crime, or, as was often said, " the cheap defence of the nation." Self-interest compelled the Northern States to include the free negro in the list of its beneficia- ries. Self-interest compelled the slave -holding States to exclude him from the list. He must be treated as King James treated the Puritans — harried out of the land. It is rather curious that free negroes were permitted, for a time, to be en- rolled in the militia in one State — and that Louisi- ana. The constitutions of the Northern States carefully excluded them. In Louisiana a special act of the Legislature! authorized free negro troops to be raised during the second war with England, but only those residing in the parish of Natchi- toches, who possessed real estate of the value of one hundred and fifty dollars, were eligible. This was the only instance of the enrolment of negro troops during the half -century. General Jackson wrote, in a letter to President Monroe, describing the battle of New Orleans, " I saw Pakenham reel and pitch out of his saddle. I have always believed * See act of the New Hampshire Legislature of July 4, 1834, providing for a " manual- labor " or "self-supporting system of education." t Act of January 30, 181 5. 394 Concessions Prompted by Exigencies that he fell from the bullet of a freeman of color, who was a famous rifle-shot, and came from the Attakapas region of Louisiana."* If war be man's most glorious occupation, and the death of the enemy's commander-in-chief be desirable, America should erect a monument to this forgotten free negro, who, on a property qual- ification of a hundred and fifty dollars, served so faithfully at the battle of New Orleans. Was not this almost as great a service as to command a negro regiment.? Less than a half -century later a great many people in the North were converted to the idea that a black skin was good enough to stop bullets fired by those fighting for slavery. The case was a compound of justice and military necessity. What gains were made during this half -century by free persons of color were per- mitted by the white race, partly as an act of jus- tice, but principally because of economic neces- sity. This last phrase was seldom heard from 1800 to 1850. It is of more recent use. Few then living realized that the free negroes of the United States were both political and economic barometers. A despised race is not likely to be taken as the unit of measure of civilization. There are many units in America, and one was the con- dition of the free negro. It was no more anom- alous than the existence of slavery in a democ- racy, the corner-stone of whose political theory was and is the equality of men. A democracy that en- * The Century Magazine, January, 1897, p. 361. 395 Const it lit ioiial History of the American People slaved three millions would be expected to deny citizenship to freemen of color. As long as this continued freedom in America was a paradox. What to do with the negro, free or slave, was the first and most serious question whenever a Territory was organized, a State admitted, or its government revised. The question was funda- mental, because it involved the right of a man to himself, as well as the right of one man to own another. It was involved in the apportion- ment of representation, as illustrated in Louisiana in 1845; in the definition of legislative powers, as illustrated in Kentucky in 1849; and again in the discussion of the franchise and the rights of citi- zens, as illustrated in California and Michigan in 1849 and 1850. The question had been discussed before, but in narrower relations. New York began the discussion in 182 1, and continued it in 1846. Virginia heard Marshall and Madison and Mon- roe and their distinguished colleagues discuss it in 1829. Pennsylvania labored to solve the question nine years later. North Carolina, in 1835, met in convention for the express purpose of taking from free negroes the right to vote. Other questions agitated the public. Should judges be elected ? Should circuit give place to resident district courts ? Should representation be apportioned according to wealth or persons, and if by persons, should slaves and free negroes be included? What powers should be granted, what denied, to the Legislature.'* How should corpora- tions be created and regulated ? To what extent 39^^ Organic Laws of the State Constitutions should free schools be established ? To whom should the rights of citizenship be granted? As the century grew older, these questions stood for reforms. They were answered in all the com- monwealths, but the answers are not recorded in all. From 1776 to 1851 the Union increased from thirteen to thirty- one States, and these adopted fifty-nine constitutions. Each of these was a re- form constitution. Each stands for what was con- sidered, at the time it was made, a remedy for ex- isting evils. It would be highly interesting and instructive to know by what process these organic laws came into being; what arguments were ad- vanced, what remedial measures were proposed but rejected ; what interpretation of civil needs was made by the convention that undertook to give the State a better fundamental law. But this knowledge is denied us, save for less than one- third of the constitutions adopted. The journals of nearly fifty of the constitutional conventions from 1776 to 1 85 1 are in print, but they are a colorless and unsatisfactory record. It is from the debates in seventeen of these conventions that we obtain our chief knowledge of the ideas that domi- nated our organic laws during the three quarters of a century that they cover. A perusal of these debates discloses much repetition of wants, of remedies proposed, and of remedies adopted. In each State there are needs purely local, but there are reforms demanded by all. The extension of the suffrage, the apportionment of representation, the provision for public schools, the establishment 397 Constitutional History of tfjc American People of a secure banking system, the exact apportion- ment of influence in the government between city and country, immigration, the rights of married women, and the reorganization of the judiciary come up repeatedly all through these years. Legis- lative functions demand definition ; trial by jury must be subjected to new tests ; negro emancipa- tion and slavery provoke discussions in all the Southern States ; but from the debates as they come down to us we turn away, confirmed in our belief in the truth of Goethe's saying that there are many echoes, but few voices, in the world. It is the few voices that we wish to hear, because they speak with authority during these strident years. Much of the constitutional history of the first half of the nineteenth century is abbreviated in the debates of the constitutional conventions that assembled between 1845 and 1S50. The civil problems that agitated the country during these years had been accumulating a long time. Louisi- ana, in 1845, sought to solve them, and may be listened to as the voice of the Gulf States. Ken- tucky debated them in its great convention of 1849, and it spoke for the border States. Michi- gan, in 1850, a strong commonwealth of fifteen years, took up the task of their solution in a series of debates that rank the Lansing convention among the great expository bodies which our country has produced. Michigan may be listened to as speak- in