Section 3. The State Governments.
[Sidenote: Later modifications.] During the present century our state governments have undergone more or less revision, chiefly in the way of abolishing property qualifications for offices making the suffrage universal, and electing officers that were formerly appointed. Only in Delaware does there still remain a property qualification for senators. There is no longer any distinction in principle between the upper and lower houses of the legislature. Both represent population, the usual difference being that the senate consists of fewer members who represent larger districts. Usually, too, the term of the representatives is two years, and the whole house is elected at the same time, while the term of senators is four years, and half the number are elected every two years. This system of two-chambered legislatures is probably retained chiefly through a spirit of conservatism, because it is what we are used to. But it no doubt has real advantages in checking hasty legislation. People are always wanting to have laws made about all sorts of things, and in nine cases out of ten their laws would be pernicious laws; so that it is well not to have legislation made too easy.
[Sidenote: The suffrage.] The suffrage by which the legislature is elected is almost universal. It is given in all the states to all male citizens who have reached the age of one-and-twenty. In many it is given also to denizens of foreign birth who have declared an intention of becoming citizens. In some it is given without further specification to every male inhabitant of voting age. Residence in the state for some period, varying from three months to two years and a half, is also generally required; sometimes a certain length of residence in the county, the town, or even in the voting precinct, is prescribed. In many of the states it is necessary to have paid one's poll-tax. There is no longer any property qualification, though there was until recently in Rhode Island, Criminals, idiots, and lunatics are excluded from the suffrage. Some states also exclude duellists and men who bet on elections. Connecticut and Massachusetts shut out persons who are unable to read. In no other country has access to citizenship and the suffrage been made so easy.
[Sidenote: Separation between legislation and the executive.] A peculiar feature of American governments, and something which it is hard for Europeans to understand, is the almost complete separation between the executive and the legislative departments. In European countries the great executive officers are either members of the legislature, or at all events have the right to be present at its meetings and take part in its discussions; and as they generally have some definite policy by which they are to stand or fall, they are wont to initiate legislation and to guide the course of the discussion. But in America the legislatures, having no such central points about which to rally their forces, carry on their work in an aimless, rambling sort of way, through the agency of many standing committees. When a measure is proposed it is referred to one of the committees for examination before the house will have anything to do with it. Such a preliminary examination is of course necessary where there is a vast amount of legislative work going on. But the private and disconnected way in which our committee work is done tends to prevent full and instructive discussion in the house, to make the mass of legislation, always chaotic enough, somewhat more chaotic, and to facilitate the various evil devices of lobbying and log-rolling.
In pointing out this inconvenience attendant upon the American plan of separating the executive and legislative departments, I must not be understood as advocating the European plan as preferable for this country. The evils that inevitably flow from any fundamental change in the institutions of a country are apt to be much more serious than the evils which the change is intended to remove. Political government is like a plant; a little watering and pruning do very well for it, but the less its roots are fooled with, the better. In the American system of government the independence of the executive department, with reference to the legislative, is fundamental; and on the whole it is eminently desirable. One of the most serious of the dangers which beset democratic government, especially where it is conducted on a great scale, is the danger that the majority for the time being will use its power tyrannically and unscrupulously, as it is always tempted to do. Against such unbridled democracy we have striven to guard ourselves by various constitutional checks and balances. Our written constitutions and our Supreme Court are important safeguards, as will be shown below. The independence of our executives is another important safeguard. But if our executive departments were mere committees of the legislature—like the English cabinet, for example—this independence could not possibly be maintained; and the loss of it would doubtless entail upon us evils far greater than those which mow flow from want of leadership in our legislatures.[11]
[Footnote 11: In two admirable essays on "Cabinet Responsibility and the Constitution," and "Democracy and the Constitution," Mr. Lawrence Lowell has convincingly argued that the American system is best adapted to the circumstances of this country. Lowell, Essays on Government, pp. 20-117, Boston, 1890.]
We must remember that government is necessarily a cumbrous affair, however conducted.
The only occasion on which the governor is a part of the legislature is when he signs or vetoes a bill. Then he is virtually in himself a third house.[12] As an executive officer the governor is far less powerful than in the colonial times. We shall see the reason of this after we have enumerated some of the principal offices in the executive department. There is always a secretary of state, whose main duty is to make and keep the records of state transactions. There is always a state treasurer, and usually a state auditor or comptroller to examine the public accounts and issue the warrants without which the treasurer cannot pay out a penny of the state's money. There is almost always an attorney-general, to appear for the state in the supreme court in all cases in which the state is a party, and in all prosecutions for capital offences. He also exercises some superintendence over the district attorneys, and acts as legal adviser to the governors and the legislature. There is also in many states a superintendent of education; and in some there are boards of education, of health, of lunacy and charity, bureau of agriculture, commissioners of prisons, of railroads, of mines, of harbours, of immigration, and so on. Sometimes such boards are appointed by the governor, but such officers as the secretary of state, the treasurer, auditor, and attorney-general are, in almost all the states, elected by the people. They are not responsible to the governor, but to the people who elect them. They are not subordinate to the governor, but are rather his colleagues. Strictly speaking, the governor is not the head of the executive department, but a member of it. The executive department is parcelled out in several pieces, and his is one of the pieces.
[Footnote 12: The state executive.]
[Sidenote: The governor's functions: 1. Advisor of legislature. 2. Commander of state militia. 3. Royal prerogative of pardon. 4. Veto power.] The ordinary functions of the governor are four in number. 1. He sends a message to the legislature, at the beginning of each session, recommending such measures as he would like to see embodied in legislation. 2. He is commander-in-chief of the state militia, and as such can assist the sheriff of a county in putting down a riot, or the President of the United States, in the event of a war. On such occasions the governor may become a personage of immense importance, as, for example, in our Civil War, when President Lincoln's demands for troops met with such prompt response from the men who will be known to history as the great "war governors." 3. The governor is invested with the royal prerogative of pardoning criminals, or commuting the sentences pronounced upon them by the courts. This power belongs to kings in accordance with the old feudal notion that the king was the source or fountain of justice. When properly used it affords an opportunity for rectifying some injustice for which the ordinary machinery of the law could not provide, or for making such allowances for extraordinary circumstances as the court could not properly consider. In our country it is too often improperly used to enable the worst criminals to escape due punishment, just because it is a disagreeable duty to hang them. Such misplaced clemency is pleasant for the murderers, but it makes life less secure for honest men and women, and in the less civilized regions of our country it encourages lynch law. 4. In all the states except Rhode Island, Delaware, Ohio, and North Carolina, the governor has a veto upon the acts of the legislature, as above explained; and in ordinary times this power, which is not executive but legislative, is probably the governor's most important and considerable power. In thirteen of the states the governor can veto particular items in a bill for the appropriation of public money, while at the same time he approves the rest of the bill. This is a most important safeguard against corruption, because where the governor does not have this power it is possible to make appropriations for unworthy or scandalous purposes along with appropriations for matters of absolute necessity, and then to lump them all together in the same bill, so that the governor must either accept the bad along with the good or reject the good along with the bad. It is a great gain when the governor can select the items and veto some while approving others. In such matters the governor is often more honest and discreet than the legislature, if for no other reason, because he is one man, and responsibility can be fixed upon him more clearly than upon two or three hundred.
Such, in brief outline, is the framework of the American state governments. But our account would be very incomplete without some mention of three points, all of them especially characteristic of the American state, and likely to be overlooked or misunderstood by Europeans.
[Sidenote: In building the state, the local self-government was left unimpaired.] First, while we have rapidly built up one of the greatest empires yet seen upon the earth, we have left our self-government substantially unimpaired in the process. This is exemplified in two ways: first, in the relationship of the state to its towns and counties, and, secondly, in its relationship to the federal government. Over the township and county governments the state exercises a general supervision; indeed, it clothes them with their authority. Townships and counties have no sovereignty; the state, on the other hand, has many elements of sovereignty, but it does not use them to obliterate or unduly restrict the control of the townships and counties over their own administrative work. It leaves the local governments to administer themselves. As a rule there is only just enough state supervision to harmonize the working of so many local administrations. Such a system of government comes as near as possible toward making all American citizens participate actively in the management of public affairs. It generates and nourishes a public spirit and a universal acquaintance with matters of public interest such as has probably never before been seen in any great country. Public spirit of equal or greater intensity may have been witnessed in small and highly educated communities, such as ancient Athens or mediaeval Florence, but in the United States it is diffused over an area equal to the whole of Europe. Among the leading countries of the world England is the one which comes nearest to the United States in the general diffusion of enlightened public spirit and political capacity throughout all classes of society.
[Sidenote: Instructive contrast with France.] A very notable contrast to the self-government which has produced such admirable results is to be seen in France, and as contrasts are often instructive, let me mention one or two features of the French government. There is nothing like the irregularity and spontaneity there that we have observed in our survey of the United States. Everything is symmetrical. France is divided into eighty-nine departments, most of them larger than the state of Delaware, some of them nearly as large as Connecticut, and the administration of one department is exactly like that of all the others. The chief officer of the department is the prefect, who is appointed by the minister of the interior at Paris. The prefect is treasurer, recruiting officer, school superintendent, all in one, and he appoints nearly all inferior officers. The department has a council, elected by universal suffrage, but it has no power of assessing taxes. The central legislature in Paris decides for it how much money it shall use and how it shall raise it. The department council is not even allowed to express its views on political matters; it can only attend to purely local details of administration.
The smallest civil division in France is the commune, which may be either rural or urban. The commune has a municipal council which elects a mayor; but when once elected the mayor becomes directly responsible to the prefect of the department, and through him to the minister of the interior. If these greater officers do not like what the mayor does, they can overrule his acts or even suspend him from office; or upon their complaint the President of the Republic can remove him.
[Sidenote: In France whether it is nominally a despotic empire or a republic at the top, there is scarcely any self-government at the bottom. Hence government there rests on an insecure foundation.] Thus in France people do not manage their own affairs, but they are managed for them by a hierarchy of officials with its head at Paris. This system was devised by the Constituent Assembly in 1790 and wrought into completeness by Napoleon in 1800. The men who devised it in 1790 actually supposed that they were inaugurating a system or political freedom(!), and unquestionably it was a vast improvement upon the wretched system which it supplanted; but as contrasted with American methods and institutions, it is difficult to call it anything else than a highly centralized despotism. It has gone on without essential change through all the revolutions which have overtaken France since 1800. The people have from time to time overthrown an unpopular government at Paris, but they have never assumed the direct control of their own affairs.
Hence it is commonly remarked that while the general intelligence of the French people is very high, their intelligence in political matters is, comparatively speaking, very low. Some persons try to explain this by a reference to peculiarities of race. But if we Americans were to set about giving to the state governments things to do that had better be done by counties and towns, and giving the federal government things to do that had better be done by the states, it would not take many generations to dull the keen edge of our political capacity. We should lose it as inevitably as the most consummate of pianists will lose his facility if he stops practising. It is therefore a fact of cardinal importance that in the United States the local governments of township, county, and city are left to administer themselves instead of being administered by a great bureau with its head at the state capital. In a political society thus constituted from the beginning it has proved possible to build up our Federal Union, in which the states, while for certain purposes indissolubly united, at the same time for many other purposes retain their self-government intact. As in the case of other aggregates, the nature of the American political aggregate has been determined by the nature of its political units.
[Sidenote: Vastness of the functions retained by the states in the American Union.] Secondly, let us observe how great are the functions retained by our states under the conditions of our Federal Union. The powers granted to our federal government, such as the control over international questions, war and peace, the military forces, the coinage, patents and copyrights, and the regulation of commerce between the states and with foreign countries,—all these are powers relating to matters that affect all the states, but could not be regulated harmoniously by the separate action of the states. In order the more completely to debar the states from meddling with such matters, they are expressly prohibited from entering into agreements with each other or with a foreign power; they cannot engage in war, save in case of actual invasion or such imminent danger as admits of no delay; without consent of Congress they cannot keep a military or naval force in time of peace, or impose custom-house duties. Besides all this they are prohibited from granting titles of nobility, coining money, emitting bills of credit, making anything but gold and silver coin a tender in payment of debts, passing bills of attainder, ex post facto laws, or laws impairing the obligation of contracts. The force of these latter restrictions will be explained hereafter. Such are the limitations of sovereignty imposed upon the states within the Federal Union.
Compared with the vast prerogatives of the state legislatures, these limitations seem small enough. All the civil and religious rights of our citizens depend upon state legislation; the education of the people is in the care of the states; with them rests the regulation of the suffrage; they prescribe the rules of marriage, the legal relations of husband and wife, of parent and child; they determine the powers of masters over servants and the whole law of principal and agent, which is so vital a matter in all business transactions; they regulate partnership, debt and credit, insurance; they constitute all corporations, both private and municipal, except such as specially fulfill the financial or other specific functions of the federal government; they control the possession, distribution, and use of property, the exercise of trades, and all contract relations; and they formulate and administer all criminal law, except only that which concerns crimes committed against the United States, on the high seas, or against the law of nations. Space would fail in which to enumerate the particulars of this vast range of power; to detail its parts would be to catalogue all social and business relationships, to examine all the foundations of law and order.[13]
[Footnote 13: Woodrow Wilson, The State: Elements of Historical and
Practical Politics, p. 437.]
This enumeration, by Mr. Woodrow Wilson, is so much to the point that I content myself with transcribing it. A very remarkable illustration of the preponderant part played by state law in America is given by Mr. Wilson, in pursuance of the suggestion of Mr. Franklin Jameson.[14] Consider the most important subjects of legislation in England during the present century, the subjects which make up almost the entire constitutional history of England for eighty years. These subjects are Catholic emancipation, parliamentary reform, the abolition of slavery, the amendment of the poor-laws, the reform of municipal corporations, the repeal of the corn laws, the admission of Jews to parliament, the disestablishment of the Irish church, the alteration of the Irish land laws, the establishment of national education, the introduction of the ballot, and the reform of the criminal law. In the United States only two of these twelve great subjects could be dealt with by the federal government: the repeal of the corn laws, as being a question of national revenue and custom-house duties, and the abolition of slavery, by virtue of a constitutional amendment embodying some of the results of our Civil War. All the other questions enumerated would have to be dealt with by our state governments; and before the war that was the case with the slavery question also. A more vivid illustration could not be asked for.
[Footnote 14: Jameson, "The Study of the Constitutional
History of the States" J.H.U. Studies, IV., v.]
How complete is the circle of points in which the state touches the life of the American citizen, we may see in the fact that our state courts make a complete judiciary system, from top to bottom independent of the federal courts.[15] An appeal may be carried from a state court to a federal court in cases which are found to involve points of federal law, or in suits arising between citizens of different states, or where foreign ambassadors are concerned. Except for such cases the state courts make up a complete judiciary world of their own, quite outside the sphere of the United States courts.
[Footnote 15: Independence of the state courts.]
[Sidenote: Constitution of the state courts.] We have already had something to say about courts in connection with those primitive areas for the administration of justice, the hundred and the county. In our states there are generally four grades of courts. There are, first, the justices of the peace , with jurisdiction over "petty police offences and civil suits for trifling sums." They also conduct preliminary hearings in cases where persons are accused of serious crimes, and when the evidence seems to warrant it they may commit the accused person for trial before a higher court. The mayor's court in a city usually has jurisdiction similar to that of justices of the peace. Secondly, there are county and municipal courts, which hear appeals from justices of the peace and from mayor's courts, and have original jurisdiction over a more important grade of civil and criminal cases. Thirdly, there are superior courts, having original jurisdiction over the most important cases and over wider of the state areas of country, so that they do not confine their sessions to one place, but move about from place to place, like the English justices in eyre. Cases are carried up, on appeal, from the lower to the superior court. Fourthly, there is in every state a supreme court, which generally has no original jurisdiction, but only hears appeals from the decisions of the other courts. In New York there is a "supremest" court, styled the court of appeals, which has the power of revising sundry judgments of the supreme court; and there is something similar in New Jersey, Illinois, Kentucky, and Louisiana.[16]
[Footnote 16: Wilson. The State, pp. 509-513.]
[Sidenote: Elective and appointive judges.] In the thirteen colonies the judges were appointed by the governor, with or without the consent of the council, and they held office during life or good behaviour. Among the changes made in our state constitutions since the Revolution, there have been few more important than those which have affected the position of the judges. In most of the states they are now elected by the people for a term of years, sometimes as short as two years. There is a growing feeling that this change was a mistake. It seems to have lowered the general character of the judiciary. The change was made by reasoning from analogy: it was supposed that in a free country all offices ought to be elective and for short terms. But the case of a judge is not really analogous to that of executive officers, like mayors and governors and presidents. The history of popular liberty is much older than the history of the United States, and it would be difficult to point to an instance in which popular liberty has ever suffered from the life tenure of judges. On the contrary, the judge ought to be as independent as possible of all transient phases of popular sentiment, and American experience during the past century seems to teach us that in the few states where the appointing of judges during life or good behaviour has prevailed, the administration of justice has been better than in the states where the judges have been elected for specified terms. Since 1869 there has been a marked tendency toward lengthening the terms of elected judges, and in several states there has been a return to the old method of appointing judges by the governor, subject to confirmation by the senate.[17] It is one of the excellent features of our system of federal government, that the several states can thus try experiments each for itself and learn by comparison of results. When things are all trimmed down to a dead level of uniformity by the central power, as in France, a prolific source of valuable experiences is cut off and shut up.
[Footnote 17: For details, see the admirable monograph of Henry Hitchcock, American State Constitutions, p. 53.]
QUESTIONS ON THE TEXT.
1. Modifications of state government during the present century:—
a. Property qualifications for office. b. The distinction between the upper and the lower house. c. The advantage in retaining a two-chambered legislature.
2. The suffrage:—
a. The persons to whom it is granted. b. The qualifications established. c. The persons excluded from its exercise.
3. The separation of the executive and legislative departments:—
a. The relation of the great executive officers to legislation in
Europe.
b. The work of legislation in the United States.
c. The most serious of the dangers that beset democratic
government.
d. Important safeguards against such a danger.
4. The state executive:—
a. The governor as a part of the legislature.
b. Officers always belonging to executive departments.
c. Officers frequently belonging to executive departments.
d. The relation of the governor to other elected executive
officers.
5. The ordinary functions of the governor:—
a. Advising the legislature. b. Commanding the militia. c. Pardoning criminals or commuting their sentences. d. Vetoing acts of the legislature.
6. Why is the power to veto particular items in a bill appropriating public money an important safeguard against corruption?
7. Local self-government in the United States left unimpaired:—
a. The extent of state supervision of towns and counties. b. The spirit thus developed in American citizens.
8. A lesson from the symmetry of the French government:—
a. The departments and their administration.
b. The prefect and his duties.
c. The department council and its sphere of action.
d. The commune.
e. The French system contrasted with the American.
f. A common view of the political intelligence of the French.
g. The probable effect of excessive state control upon the
political intelligence of Americans.
9. The greatness of the functions retained by the states under the federal government:—
a. Powers granted to the government of the United States.
b. The reason for granting such powers,
c. The powers denied to the states.
d. The reason for such prohibitions.
e. The vast range of powers exercised by the states.
f. The most important subjects of legislation in England for the past
eighty years.
g. The governments, state or national, to which these twelve
subjects would have fallen in the United States.
10. Speak of the independence of the state courts.
11. In what cases only may matters be transferred from them to a federal court?
12. The constitution of the state courts:—
a. Justices of the peace; the mayor's court. b. County and municipal courts. c. The superior courts. d. The supreme court. e. Still higher courts in certain states.
13. The selection of judges and their terms of service:—
a. In the thirteen colonies. b. In most of the states since the Revolution. c. The reasons for a life tenure. d. The tendency since 1869.
14. Mention a conspicuous advantage of our system of government over the French.
SUGGESTIVE QUESTIONS AND DIRECTIONS.
1. Was there ever a charter government in your state? If so, where is the charter at the present time? What is its present value? Try to see it, if possible. Pupils of Boston and vicinity, for example, may examine in the office of the secretary of state, at the state house, the charter of King Charles (1629) and that of William and Mary (1692).
2. When was your state organized under its present government? If it is not one of the original thirteen, what was its history previous to organization; that is, who owned it and controlled it, and how came it to become a state?
3. What are the qualifications for voting in your state?
4. What are the arguments in favour of an educational qualification for voters (as, for example, the ability to read the Constitution of the United States)? What reasons might be urged against such qualifications?
5. Who is the governor of your state? What political party supported him for the position? For what ability or eminent service was he selected?
6. Give illustrations of the governor's exercise of the four functions of advising, vetoing, pardoning, and commanding (consult the newspapers while the legislature is in session).
7. Mention some things done by the governor that are not included in the enumeration of his functions in the text.
8. Visit, if practicable, the State House. Observe the various offices, and consider the general nature of the business done there. Attend a session of the Senate or the House of Representatives. Obtain some "orders of the day."
9. If the legislature is in session, follow its proceedings in the newspapers. What important measures are under discussion? On what sort of questions are party lines pretty sharply drawn? On what sort of questions are party distinctions ignored?
10. Consult the book of general or public statutes, and report on the following points:—
a. The magnitude of the volume.
b. Does it contain all the laws? If not, what are omitted?
c. Give some of the topics dealt with.
d. Where are the laws to be found that have been made since the printing
of the volume?
e. Are the originals of the laws in the volume? If not, where are they
and in what shape?
11. Is everybody expected to know all the laws?
12. Does ignorance of the law excuse one for violating it?
13. Suppose people desire the legislature to pass some law, as, for example, a law requiring towns and cities to provide flags for school-houses, how is the attention of the legislature secured? What are the various stages through which the bill must pass before it can become a law? Why should there be so many stages?
14. Give illustrations of the exercise of federal government, state government, and local government, in your own town or city. Of which government do you observe the most signs? Of which do you observe the fewest signs? Of which government do the officers seem most sensitive to local opinion?
15. Are the sessions of the legislature in your state annual or biennial? What is the argument for each system?
For answers to numbers 16, 17, 18, and 19, consult the public statutes, a lawyer, or some intelligent business man. A fair idea of the successive steps in the courts may be obtained from a good unabridged dictionary by looking up the technical terms employed in these questions.
16. What is the difference between a civil action and a criminal?
a. In respect to the object to be gained in each?
b. In respect to the party that is the plaintiff?
c. In respect to the consequences to the defendant if the case goes
against him?
17. Give an outline of the procedure in a minor criminal action that is tried without a jury in a lower court. Consider (1) the complaint, (2) the warrant, (3) the return, (4) the recognizance, (5) the subpoena, (6) the arraignment, (7) the plea, (8) the testimony, (9) the arguments,(10) the judgment and sentence, and (11) the penalty and its enforcement.
What is an appeal?—This procedure seems cumbrous, but it is founded in common sense. What one of the foregoing steps, for example, would you omit? Why?
18. Give an outline of the procedure in a criminal action that is tried with a jury in a higher court. The action is begun in a lower court where the first five stages are the same as in number 17. Then follow (6) the examination of witnesses, (7) the binding over of the accused to appear before the higher court for trial, (8) the sending of the complaint and the proceedings thereon to the district or county attorney, (9) the indictment, (10) the action of the grand jury upon the indictment, (11) the challenging of jurors before the trial, (12) the arraignment, (13) the plea, (14) the testimony, (15) the arguments, (16) the charge to the jury, (17) the verdict, and (18) the sentence, with its penalty and the enforcement of it. What are "exceptions?"—Why should there be a jury in the higher court when there is none in the lower? What is the objection to dispensing with any one of the foregoing steps? Does this machinery make it difficult to punish crime? Why should an accused person receive so much consideration?
19. Give an outline of the procedure in a minor civil action. Consider (1) the writ, (2) the attachment, (3) the summons to the defendant, (4) the return, (5) the pleading, (6) the testimony, (7) the arguments, (8) the judgment or decision of the judge, and (9) the execution.—If the action is conducted in a higher court, then a jury decides the question at issue, the judge instructing the jurors in points of law.
20. Suppose an innocent man is tried for an alleged crime and acquitted, has he any redress?
21. Is the enforcement of law complete and satisfactory in your community?
22. What is your opinion of the general security of person and property in your community?
23. Is there any connection between public sentiment about a law and the enforcement of that law? If so, what is it?
24. Any one of the twelve subjects of legislation cited on page 177 may be taken as a special topic. Consult any modern history of England.
25. Which do you regard as the more important possession for the citizen,—an acquaintance with the principles and details of government and law, or a law-abiding and law-supporting spirit? What reasons have you for your opinion? Where is your sympathy in times of disorder, with, those who defy the law or with those who seek to enforce it? (Suppose a case in which you do not approve the law, and then answer.)
26. May you ever become an officer of the law? Would you as a citizen be justified in withholding from an officer that obedience and moral support which you as an officer might justly demand from every citizen?
BIBLIOGRAPHICAL NOTE.
The State.—For the founding of the several colonies, their charters, etc., the student may profitably consult the learned monographs in Winsor's Narrative and Critical History of America, 8 vols., Boston, 1886-89. A popular account, quite full in details, is given in Lodge's Short History of the English Colonies in America, N. Y., 1881. There is a fairly good account of the revision and transformation of the colonial governments in Bancroft's History of the United States, final edition, N.Y., 1886, vol. v. pp. 111-125.
The series of "American Commonwealths," edited by H.E. Scudder, and published by Houghton, Mifflin & Co., will be found helpful. The following have been published: Johnston, Connecticut: a Study of a Commonwealth-Democracy, 1887; Roberts, New York: the Planting and Growth of the Empire State, 2 vols., 1887; Browne, Maryland: the History of a Palatinate, 2d ed., 1884; Cooke, Virginia: a History of the People, 1883; Shaler, Kentucky: a Pioneer Commonwealth, 1884; King, Ohio: First Fruits of the Ordinance of 1787,1888; Dunn, Indiana: a Redemption from Slavery, 1888; Cooley, Michigan: a History of Governments, 1885; Carr, Missouri: a Bone of Contention, 1888; Spring, Kansas: the Prelude to the War for the Union, 1885; Royce, California: a Study of American Character, 1886; Barrows, Oregon: the Struggle for Possession, 1883.
In connection with the questions on page 183, the student is advised to consult Dole's Talks about Law: a Popular Statement of What our Law is and How it is Administered, Boston, 1887. This book deserves high praise. In a very easy and attractive way it gives an account of such facts and principles of law as ought to be familiarly understood by every man and woman.
CHAPTER VII.
WRITTEN CONSTITUTIONS.
[Sidenote: In the American state there is a power above the legislature.] Toward the close of the preceding chapter[1] I spoke of three points especially characteristic of the American state, and I went on to mention two of them. The third point which I had in mind is so remarkable and important as to require a chapter all to itself. In the American state the legislature is not supreme, but has limits to its authority prescribed by a written document, known as the Constitution; and if the legislature happens to pass a law which violates the constitution, then whenever a specific case happens to arise in which this statute is involved, it can be brought before the courts, and the decision of the court, if adverse to the statute, annuls it and renders it of no effect. The importance of this feature of civil government in the United States can hardly be overrated. It marks a momentous advance in civilization, and it is especially interesting as being peculiarly American. Almost everything else in our fundamental institutions was brought by our forefathers in a more or less highly developed condition from England; but the development of the written constitution, with the consequent relation of the courts to the law-making power, has gone on entirely upon American soil.
[Footnote 1: See above, p. 172.]
[Sidenote: Germs of the idea of a written constitution.] [Sidenote: Our indebtedness to the Romans.] [Sidenote: Mediæval charters.] The germs of the written constitution existed a great while ago. Perhaps it would not be easy to say just when they began to exist. It was formerly supposed by such profound thinkers as Locke and such persuasive writers as Rousseau, that when the first men came together to live in civil society, they made a sort of contract with one another as to what laws they would have, what beliefs they would entertain, what customs they would sanction, and so forth. This theory of the Social Contract was once famous, and exerted a notable influence on political history, and it is still interesting in the same way that spinning-wheels and wooden frigates and powdered wigs are interesting; but we now know that men lived in civil society, with complicated laws and customs and creeds, for many thousand years before the notion had ever entered anybody's head that things could be regulated by contract. That notion we owe chiefly to the ancient Romans, and it took them several centuries to comprehend the idea and put it into practice. We owe them a debt of gratitude for it. The custom of regulating business and politics and the affairs of life generally by voluntary but binding agreements is something without which we moderns would not think life worth living. It was after the Roman world—that is to say, Christendom, for in the Middle Ages the two terms were synonymous—had become thoroughly familiar with the idea of contract, that the practice grew up of granting written charters to towns, or monasteries, or other corporate bodies. The charter of a mediaeval town was a kind of written contract by which the town obtained certain specified immunities or privileges from the sovereign or from a great feudal lord, in exchange for some specified service which often took the form of a money payment. It was common enough for a town to buy liberty for hard cash, just as a man might buy a farm. The word charter originally meant simply a paper or written document, and it was often applied to deeds for the transfer of real estate. In contracts of such importance papers or parchment documents were drawn up and carefully preserved as irrefragable evidences of the transaction. And so, in quite significant phrase the towns zealously guarded their charters as the "title-deeds of their liberties."
[Sidenote: The "Great Charter" (1215).] After a while the word charter was applied in England to a particular document which specified certain important concessions forcibly wrung by the people from a most unwilling sovereign. This document was called Magna Charta, or the "Great Charter," signed at Runnymede, June 15, 1215, by John, king of England. After the king had signed it and gone away to his room, he rolled in a mad fury on the floor, screaming curses, and gnawing sticks and straw in the impotence of his, wrath.[2] Perhaps it would be straining words to call a transaction in which the consent was so one-sided a "contract," but the idea of Magna Charta was derived from that of the town charters with which people were already familiar. Thus a charter came to mean "a grant made by the sovereign either to the whole people or to a portion of them, securing to them the enjoyment of certain rights." Now in legal usage a charter differs from a constitution in this, that the former is granted by the sovereign, while the latter is established by the people themselves: both are the fundamental law of the land.[3] a The distinction is admirably expressed, but in history it is not always easy to make it. Magna Charta was in form a grant by the sovereign, but it was really drawn up by the barons, who in a certain sense represented the English people; and established by the people after a long struggle which was only in its first stages in John's time. To some extent it partook of the nature of a written constitution.
[Footnote 2: Green, Hist. of the English People, vol. i. p. 248.]
[Footnote 3: Bouvier, Law Dictionary, 12th ed., vol. i. p. 259.]
[Sidenote: The "Bill of Rights" (1689).] Let us now observe what happened early in 1689, after James II had fled from England. On January 28th parliament declared the throne vacant. Parliament then drew up the "Declaration of Rights," a document very similar in purport to the first eight amendments to our Federal Constitution, and on the 13th of February the two houses offered the crown to William and Mary on condition of their accepting this declaration of the "true, ancient, and indubitable rights of the people of this realm." The crown having been accepted on these terms, parliament in the following December enacted the famous "Bill of Rights," which simply put their previous declaration into the form of a declaratory statute. The Bill of Rights was not—even in form—a grant from a sovereign; it was an instrument framed by the representatives of the people, and without promising to respect it William and Mary could no more have mounted the throne than a president of the United States could be inducted into office if he were to refuse to take the prescribed oath of allegiance to the Federal Constitution. The Bill of Rights was therefore, strictly speaking, a piece of written constitution; it was a constitution as far as it went.
[Sidenote: Foreshadowing of the American idea by Sir Harry Vane (1656).] The seventeenth century, the age when the builders of American commonwealths were coming from England, was especially notable in England for two things. One was the rapid growth of modern commercial occupations and habits, the other was the temporary overthrow of monarchy, soon followed by the final subjection of the crown to parliament. Accordingly the sphere of contract and the sphere of popular sovereignty were enlarged in men's minds, and the notion of a written constitution first began to find expression. The "Instrument of Government" which in 1653 created the protectorate of Oliver Cromwell was substantially a written constitution, but it emanated from a questionable authority and was not ratified. It was drawn up by a council of army officers; and "it broke down because the first parliament summoned under it refused to acknowledge its binding force." [4] The dissolution of this parliament accordingly left Oliver absolute dictator. In 1656, when it seemed so necessary to decide what sort of government the dictatorship of Cromwell was to prepare the way for, Sir Harry Vane proposed that a national convention should be called for drawing up a written constitution.[5] The way in which he stated his case showed that he had in him a prophetic foreshadowing of the American idea as it was realized in 1787. But Vane's ideas were too far in advance of his age to be realized then in England. Older ideas, to which men were more accustomed, determined the course of events there, and it was left for Americans to create a government by means of a written constitution. And when American statesmen did so, they did it without any reference to Sir Harry Vane. His relation to the subject has been discovered only in later days, but I mention him here in illustration of the way in which great institutions grow. They take shape when they express the opinions and wishes of a multitude of persons; but it often happens that one or two men of remarkable foresight had thought of them long beforehand.
[Footnote 4: Gardiner, Constitutional Documents of the Puritan
Revolution, p. lx.]
[Footnote 5: See Hosmer's Young Sir Henry Vane, pp. 432-444,—one of the best books ever written for the reader who wishes to understand the state of mind among the English people in the crisis when they laid the foundations of the United States.]
[Sidenote: The Mayflower compact(1620).] In America the first attempts at written constitutions were in the fullest sense made by the people, and not through representatives but directly. In the Mayflower's cabin, before the Pilgrims had landed on Plymouth rock, they subscribed their names to a compact in which they agreed to constitute themselves into a "body politic," and to enact such laws as might be deemed best for the colony they were about to establish; and they promised "all due submission and obedience" to such laws. Such a compact is of course too vague to be called a constitution. Properly speaking, a written constitution is a document which defines the character and powers of the government to which its framers are willing to entrust themselves. Almost any kind of civil government might have been framed under the Mayflower compact, but the document is none the less interesting as an indication of the temper of the men who subscribed their names to it.
[Sidenote: The "Fundamental Orders of Connecticut" (1639).] The first written constitution known to history was that by which the republic of Connecticut was organized in 1639. At first the affairs of the Connecticut settlements had been directed by a commission appointed by the General Court of Massachusetts, but on the 14th of January, 1639, all the freemen of the three river towns—Windsor, Hartford, and Wethersfield—assembled at Hartford, and drew up a written constitution, consisting of eleven articles, in which the frame of government then and there adopted was distinctly described. This document, known as the "Fundamental Orders of Connecticut", created the government under which the people of Connecticut lived for nearly two centuries before they deemed it necessary to amend it. The charter granted to Connecticut by Charles II. in 1662 was simply a royal recognition of the government actually in operation since the adoption of the Fundamental Orders.
[Sidenote: Germinal development of the colonial charter toward the modern state constitution.] In those colonies which had charters these documents served, to a certain extent, the purposes of a written constitution. They limited the legislative powers of the colonial assemblies. The question sometimes came up as to whether some statute made by the assembly was not in excess of the powers conferred by the charter. This question usually arose in connection with some particular law case, and thus came before the courts for settlement,—first before the courts of the colony; afterwards it might sometimes be carried on appeal before the Privy Council in England. If the court decided that the statute was in transgression of the charter, the statute was thereby annulled.[6] The colonial legislature, therefore, was not a supreme body, even within the colony; its authority was restricted by the terms of the charter. Thus the Americans, for more than a century before the Revolution, were familiarized with the idea of a legislature as a representative body acting within certain limits prescribed by a written document. They had no knowledge or experience of a supreme legislative body, such as the House of Commons has become since the founders of American states left England. At the time of the Revolution, when the several states framed new governments, they simply put a written constitution into the position of supremacy formerly occupied by the charter. Instead of a document expressed in terms of a royal grant, they adopted a document expressed in terms of a popular edict. To this the legislature must conform; and people were already somewhat familiar with the method of testing the constitutionality of a law by getting the matter brought before the courts. The mental habit thus generated was probably more important than any other single circumstance in enabling our Federal Union to be formed. Without it, indeed, it would have been impossible to form a durable union.
[Footnote 6: Bryce, American Commonwealth, vol. i. pp. 243, 415.]
[Sidenote: Abnormal development of the state constitution, encroaching upon the province of the legislature.] [Sidenote: The Swiss "Referendum" 196] Before pursuing this subject, we may observe that American state constitutions have altered very much in character since the first part of the present century. The earlier constitutions were confined to a general outline of the organization of the government. They did not undertake to make the laws, but to prescribe the conditions under which laws might be made and executed. Recent state constitutions enter more and more boldly upon the general work of legislation. For example, in some states they specify what kinds of property shall be exempt from seizure for debt, they make regulations as to railroad freight-charges, they prescribe sundry details of practice in the courts, or they forbid the sale of intoxicating liquors. Until recently such subjects would have been left to the legislatures, no one would have thought of putting them into a constitution. The motive in so doing is a wish to put certain laws into such a shape that it will be difficult to repeal them. What a legislature sees fit to enact this year it may see fit to repeal next year. But amending a state constitution is a slow and cumbrous process. An amendment may be originated in the legislature, where it must secure more than a mere majority—perhaps a three fifths or two thirds vote—in order to pass; in some states it must be adopted by two successive legislatures, perhaps by two thirds of one and three fourths of the next; in some states not more than one amendment can be brought before the same legislature; in some it is provided that amendments must not be submitted to the people oftener than once in five years; and so on. After the amendment has at length made its way through the legislature, it must be ratified by a vote of the people at the next general election. Another way to get a constitution amended is to call a convention for that purpose. In order to call a convention, it is usually necessary to obtain a two thirds vote in the legislature; but in some states the legislature is required at stated intervals to submit to the people the question of holding such a convention, as in New Hampshire every seven years; in Iowa, every ten years; in Michigan, every sixteen years; in New York, Ohio, Maryland, and Virginia, every twenty years.[7] A convention is a representative body elected by the people to meet at some specified time and place for some specified purpose, and its existence ends with the accomplishment of that purpose. It is in this occasional character that the convention differs from an ordinary legislative assembly. With such elaborate checks against hasty action, it is to be presumed that if a law can be once embodied in a state constitution, it will be likely to have some permanence. Moreover, a direct vote by the people gives a weightier sanction to a law than a vote in the legislature. There is also, no doubt, a disposition to distrust legislatures and in some measure do their work for them by direct popular enactment. For such reasons some recent state constitutions have come almost to resemble bodies of statutes. Mr. Woodrow Wilson suggestively compares this kind of popular legislation with the Swiss practice known as the Referendum; in most of the Swiss cantons an important act of the legislature does not acquire the force of law until it has been referred to the people and voted on by them. "The objections to the, referendum," says Mr. Wilson, "are, of course, that it assumes a discriminating judgment and a fullness of information on the part of the people touching questions of public policy which they do not often possess, and that it lowers the sense of responsibility on the part of legislators." [8] Another serious objection to our recent practice is that it tends to confuse the very valuable distinction between a constitution and a body of statutes, to necessitate a frequent revision of constitutions, and to increase the cumbrousness of law-making. It would, however, be premature at the present time to pronounce confidently upon a practice of such recent origin. It is clear that its tendency is extremely democratic, and that it implies a high standard of general intelligence and independence among the people. If the evils of the practice are found to outweigh its benefits, it will doubtless fall into disfavour.
[Footnote 7: See Henry Hitchcock's admirable monograph, American
State Constitutions, p. 19.]
[Footnote 8: Wilson. The State, p. 490.]
QUESTIONS ON THE TEXT. What is to be said with regard to the following topics?
I. A power above the legislature:—
a. The constitution. b. The relation of the courts to laws that violate the constitution. c. The importance of this relation. d. The American origin of the written constitution.
2. The germs of the idea of a written constitution:—
a. The theory of a "social contract." b. The objection to this theory. c. Roman origin of the idea of contract.
3. Mediæval charters:—
a. The charter of a town. b. The word charter. c. Magna Charta. d. The difference between a charter and a constitution. e. The form of Magna Charta as contrasted with its essential nature.
4. Documents somewhat resembling written constitutions:—
a. The Declaration of Rights. b. The Bill of Rights.
5. The foreshadowing of the American idea of written constitutions:—
a. Two conditions especially notable in England in the seventeenth
century.
b. The influence of these conditions on popular views of government.
c. The "Instrument of Government."
d. Sir Harry Vane's proposition.
e. Why allude to Vane's scheme when nothing came of it?
6. Early suggestions of written constitutions in America:—
a. The compact on the Mayflower. b. Wherein the compact fell short of a written constitution. c. The "Fundamental Orders of Connecticut."
7. The development of the colonial charter into a written constitution:—
a. The limitation of the powers of colonial assemblies.
b. The decision of questions relating to the transgression of a charter
by a colonial legislature.
c. The colonial assembly as contrasted with the House of
Commons.
d. The difference between the written constitution and the
charter for which it was substituted.
e. The readiness of the people to adopt written constitutions.
8. The extensive development of the written constitution in some states:—
a. The simplicity of the earlier constitutions. b. Illustrations of the legislative tendencies of later constitutions. c. The motive for such extension of a constitution. d. The difficulty of amending a constitution. e. The legislative method of amendment. f. The convention method of amendment. g. The presumed advantage of embodying laws in the constitution. h. A comparison with the Swiss Referendum. i. Objections to the Swiss Referendum. j. Other objections to the practice of putting laws into the constitution.
SUGGESTIVE QUESTIONS AND DIRECTIONS.
1. Do you belong to any society that has a constitution? Has the society rules apart from the constitution? Which may be changed the more readily? Why not put all the rules into the constitution?
2. Read the constitution of your state in part or in full. Give some account of its principal divisions, of the topics it deals with, and its magnitude or fullness. Are there any amendments? If so, mention two or three, and give the reasons for their adoption. Is there any declaration of rights in it? If so, what are some of the rights declared, and whose are they said to be?
3. Where is the original of your state constitution kept? What sort of looking document do you suppose it to be? Where would you look for a copy of it? If a question arises in any court about the interpretation of the constitution, must the original be produced to settle the wording of the document?
4. Has any effort been made in your state to put into the constitution matters that have previously been subjects of legislative action? If so, give an account of the effort, and the public attitude towards it.
5. Which is preferable,—a constitution that commands the approval of the people as a whole or that which has the support of a dominant political party only?
6. Suppose it is your personal conviction that a law is unconstitutional, may you disregard it? What consequences might ensue from such disregard?
7. May people honestly and amicably differ about the interpretation of the constitution or of a law, in a particular case? If important interests are dependent on the interpretation, how can the true one be found out? Does a lawyer's opinion settle the interpretation? What value has such an opinion? Where must people go for authoritative and final interpretations of the laws? Can they get such interpretations by simply asking for them?
8. The constitution of New Hampshire provides that when the governor cannot discharge the duties of his office, the president of the senate shall assume them. During the severe sickness of a governor recently, the president of the senate hesitated to act in his stead; it was not clear that the situation was grave enough to warrant such a course. Accordingly the attorney-general of the state brought an action against the president of the senate for not doing his duty; the court considered the situation, decided against the president of the senate, and ordered him to become acting governor. Why was this suit necessary? Was it conducted in a hostile spirit? Wherein did the decision help the state? Wherein did it help the defendant? Wherein may it possibly prove helpful in the future history of the state?
9. Mention particular things that the governor, the legislature, and the judiciary of your state have done or may do. Then find the section or clause or wording in your state constitution that gives authority for each of these things. For example, read the particular part that authorizes your legislature:—
a. To incorporate a city. b. To compel children to attend school. c. To buy uniforms for a regiment of soldiers. d. To establish a death penalty. e. To send a committee abroad to study a system of waterworks.
10. Trace the authority of a school-teacher, a policeman, a selectman, a mayor, or of any public officer, back to some part of your constitution.
11. Mention any parts of your constitution that seem general and somewhat indefinite, and that admit, therefore, of much freedom in interpretation.
12. Show how the people are, in one aspect, subordinate to the constitution; in another, superior to it.
BIBLIOGRAPHICAL NOTE.
Written Constitutions.—Very little has been written or published with reference to the history of the development of the idea of a written constitution. The student will find some suggestive hints in Hannis Taylor's Origin and Growth of the English Constitution, vol. i, Boston, 1889. See Henry Hitchcock's American State Constitutions; a Study of their Growth, N.Y., 1887, a learned and valuable essay. See also J.H.U. Studies, I., xi., Alexander Johnston, The Genesis of a New England State (Connecticut); III., ix.-x., Horace Davis, American Constitutions; also Preston's Documents Illustrative of American History, 1606-1863, N.Y., 1886; Stubbs, Select Charters and other Illustrations of English Constitutional History, Oxford, 1870; Gardiner's Constitutional Documents of the Puritan Revolution, Oxford, 1888.
CHAPTER VIII.
THE FEDERAL UNION.
Section 1. Origin of the Federal Union.
Having now sketched the origin and nature of written constitutions, we are prepared to understand how by means of such a document the government of our Federal Union was called into existence. We have already described so much of the civil government in operation in the United States that this account can be made much more concise than if we had started at the top instead of the bottom and begun to portray our national government before saying a word about states and counties and towns. Bit by bit the general theory of American self-government has already been set before the reader. We have now to observe, in conclusion, what a magnificent piece of constructive work has been performed in accordance with that general theory. We have to observe the building up of a vast empire out of strictly self-governing elements.
[Sidenote: English institutions in all the colonies.] There was always one important circumstance in favour of the union of the thirteen American colonies into a federal nation. The inhabitants were all substantially one people. It is true that in some of the colonies there were a good many persons not of English ancestry, but the English type absorbed and assimilated everything else.
All spoke the English language, all had English institutions. Except the development of the written constitution, every bit of civil government described in the preceding pages came to America directly from England, and not a bit of it from any other country, unless by being first filtered through England. Our institutions were as English as our speech. It was therefore comparatively easy for people in one colony to understand people in another, not only as to their words but as to their political ideas. Moreover, during the first half of the eighteenth century, the common danger from the aggressive French enemy on the north and west went far toward awakening in the thirteen colonies a common interest. And after the French enemy had been removed, the assertion by parliament of its alleged right to tax the Americans threatened all the thirteen legislatures at once, and thus in fact drove the colonies into a kind of federal union.
[Sidenote: The New England confederacy (1643-84).] [Sidenote: Albany Congress(1754).] [Sidenote: Stamp Act Congress (1765).] Confederations among states have generally owed their origin, in the first instance, to military necessities. The earliest league in America, among white people at least, was the confederacy of New England colonies formed in 1643, chiefly for defence against the Indians. It was finally dissolved amid the troubles of 1684, when the first government of Massachusetts was overthrown. Along the Atlantic coast the northern and the southern colonies were for some time distinct groups, separated by the unsettled portion of the central zone. The settlement of Pennsylvania, beginning in 1681, filled this gap and made the colonies continuous from the French frontier of Canada to the Spanish frontier of Florida. The danger from France began to be clearly apprehended after 1689, and in 1698 one of the earliest plans of union was proposed by William Penn. In 1754, just as the final struggle with France was about to begin, there came Franklin's famous plan for a permanent federal union; and this plan was laid before a congress assembled at Albany for renewing the alliances with the Six Nations.[1] Only seven colonies were represented in this congress. Observe the word "congress." If it had been a legislative body it would more likely have been called a "parliament." But of course it was nothing of the sort. It was a diplomatic body, composed of delegates representing state governments, like European congresses,—like the Congress of Berlin, for example, which tried to adjust the Eastern Question in 1878. Eleven years after the Albany Congress, upon the news that parliament had passed the Stamp Act, a congress of nine colonies assembled at New York in October, 1765, to take action thereon.
[Footnote 1: Franklin's plan was afterward submitted to the several legislatures of the colonies, and was everywhere rejected because the need for union was nowhere strongly felt by the people.]
[Sidenote: Committees of Correspondence (1772-75).] Nine years elapsed without another congress. Meanwhile the political excitement, with occasional lulls, went on increasing, and some sort of cooperation between the colonial governments became habitual. In 1768, after parliament had passed the Townshend revenue acts, there was no congress, but Massachusetts sent a circular letter to the other colonies, inviting them to cooperate in measures of resistance, and the other colonies responded favourably. In 1772, as we have seen, committees of correspondence between the towns of Massachusetts acted as a sort of provisional government for the commonwealth. In 1773 Dabney Carr, of Virginia, enlarged upon this idea, and committees of correspondence were forthwith instituted between the several colonies. Thus the habit of acting in concert began to be formed. In 1774, after parliament had passed an act overthrowing the government of Massachusetts, along with other offensive measures, a congress assembled in September at Philadelphia, the city most centrally situated as well as the largest. If the remonstrances adopted at this congress had been heeded by the British government, and peace had followed, this congress would probably have been as temporary an affair as its predecessors; people would probably have waited until overtaken by some other emergency. But inasmuch as war followed, the congress assembled again in May, 1775, and thereafter became practically a permanent institution until it died of old age with the year 1788.
[Sidenote: Continental Congress (1774-1789).] This congress was called "continental" to distinguish it from the "provincial congresses" held in several of the colonies at about the same time. The thirteen colonies were indeed but a narrow strip on the edge of a vast and in large part unexplored continent, but the word "continental" was convenient for distinguishing between the whole confederacy and its several members.
[Sidenote: The several states were never at any time sovereign states.] [Sidenote: The Articles of Confederation] The Continental Congress began to exercise a certain amount of directive authority from the time of its first meeting in 1774. Such authority as it had arose simply from the fact that it represented an agreement on the part of the several governments to pursue a certain line of policy. It was a diplomatic and executive, but scarcely yet a legislative body. Nevertheless it was the visible symbol of a kind of union between the states. There never was a time when any one of the original states exercised singly the full powers of sovereignty. Not one of them was ever a small sovereign state like Denmark or Portugal. As they acted together under the common direction of the British government in 1759, the year of Quebec, so they acted together under the common direction of that revolutionary body, the Continental Congress, in 1775, the year of Bunker Hill. In that year a "continental army" was organized in the name of the "United Colonies." In the following year, when independence was declared, it was done by the concerted action of all the colonies; and at the same time a committee was appointed by Congress to draw up a written constitution. This constitution, known as the "Articles or Confederation," was submitted to Congress in the autumn of 1777, and was sent to the several states to be ratified. A unanimous ratification was necessary, and it was not until March 1781, that unanimity was secured and the articles adopted.
Meanwhile the Revolutionary War had advanced into its last stages, having been carried on from the outset under the general direction of the Continental Congress. When reading about this period of our history, the student must be careful not to be misled by the name "congress" into reasoning as if there were any resemblance whatever between that body and the congress which was created by our Federal Constitution. The Continental Congress was not the parent of our Federal Congress; the former died without offspring, and the latter had a very different origin, as we shall soon see. The former simply bequeathed to the latter a name, that was all.
[Sidenote: Nature and powers of the Continental Congress] The Continental Congress was an assembly of delegates from the thirteen states, which from 1774 to 1783 held its sessions at Philadelphia.[2] It owned no federal property, not even the house in which it assembled, and after it had been turned out of doors by a mob of drunken soldiers in June, 1783, it flitted about from place to place, sitting now at Trenton, now at Annapolis, and finally at New York.[3] Each state sent to it as many delegates as it chose, though after the adoption of the articles no state could send less than two or more than seven. Each state had one vote, and it took nine votes, or two thirds of the whole, to carry any measure of importance. One of the delegates was chosen president or chairman of the congress, and this position was one of great dignity and considerable influence, but it was not essentially different from the position, of any of the other delegates. There were no distinct executive officers. Important executive matters were at first assigned to committees, such as the Finance Committee and the Board of War, though at the most trying time the finance committee was a committee of one, in the person of Robert Morris, who was commonly called the Financier. The work of the finance committee was chiefly trying to solve the problem of paying bills without spending money, for there was seldom any money to spend. Congress could not tax the people or recruit the army. When it wanted money or troops, it could only ask the state governments for them; and generally it got from a fifth to a fourth part of the troops needed, but of money a far smaller proportion. Sometimes it borrowed money from Holland or France, but often its only resource was to issue paper promises to pay, or the so-called Continental paper money. There were no federal courts,[4] nor marshals to execute federal decrees. Congress might issue orders, but it had no means of compelling obedience.