Source: "Croscup's United States History" by George E. Croscup, B.A.; 1911; pgs 55-74 Transcribed by Kathy Leigh, March 29, 2001
ITS RISE AND DEVELOPMENT IN THE UNITED STATES
BRYCE, J., The American Commonwealth, I, II;
ASHLEY, R. L., The American Federal State;
HART, A. B., Actual Government as Applied under American Conditions;
HINSDALE, B. A., The American Government, National and State;
WILSON, W., The State, Ch. XI;
WOODBURN, J. A., The American Republic and its Government.
CHANNING and HART, eds., The American History Leaflets;
MEAD, E. D. ed, Old South Leaflets.
PERIODS OF CONSTITUTIONAL HISTORYThe review of the Constitutional government of the United States may be studied under the following headings:
|I.||COLONIAL BEGINNINGS 1606-1643--37 yrs.|
|II.||GROWTH OF THE FEDERAL IDEA 1643-1765--122 yrs.|
|III.||ESTABLISHMENT OF THE NATIONAL CONSTITUTION 1765-1789--24 yrs.|
|IV.||DEVELOPMENT OF THE CONSTITUTION 1789-1840--51 yrs.|
|V.||NATIONAL VS. FEDERAL GOVERNMENT 1840-1865--25 yrs.|
|VI.||RECENT DEVELOPMENT 1865-1911--46 yrs.|
I. COLONIAL BEGINNINGS,
1606 to 1643--37 Years
The English colonists carried with them to the new world all the rights of the Englishmen. They also carried with them the idea that there was something in government above the ordinary law, i. e., a written constitution. They looked upon the charters granted by the King or the collections of laws they themselves drew up as constituting such a written document. They thus in colonial days prepared the way for the national constitutions of a later time.
A charter was granted by James I to the London and Plymouth Companies.
The charter granted the companies land between 34o and 45o of latitude. Its purpose was merely to incorporate a trading company, and the colonists were given no share in their government, though the document declared they were entitled "to all liberties, franchises, and immunities of British subjects."
A new charter was granted to the London Company, which had settled Jamestown two years previously.
The London Company was separated from the Plymouth Company. The colonists gained no new liberties by this document, though the patentees in England did. They were given all powers of government subject to the king, of course. Thus the companies' representatives in America, the governor and other officers, were to have "full and absolute power and authority to correct, punish, pardon, govern, and settle."
The London Company granted REPRESENTATIVE GOVERNMENT to the inhabitants of Virginia. This idea was incorporated by the company in the framework of government provided for the colony in 1620.
The faction in the company, which represented the Parliamentary opposition to the English sovereign, hoped to secure the cooperation of the colonists in the industrial experiment by granting a greater degree of political liberty. They therefore provided for a government in the colony to consist of a governor and council, appointed by the company in England, and a general assembly consisting of the council and two burgesses chosen by the inhabitants of each "town, hundred or other particular plantation" in Virginia.
"Thus was formed and established the first legislature that ever sat in America. And this example of a domestic parliament to regulate all the internal concerns of the country was never lost sight of, but was ever afterwards cherished throughout America as the dearest birthright of freemen."
THE MAYFLOWER COMPACT
The Pilgrims drew up the Mayflower Compact, which may be considered the germ of a popular, written constitution, i. e., one prepared by the people for their own government.
The Pilgrims left England with a patent from the London Company. They landed too far north to be under the jurisdiction of that company, and they therefore instituted a government of their own.
THE MAYFLOWER COMPACT-1620.[This is taken, with some slight modifications, from Bradford's History of Plymouth Plantation.]
IN the name of God, Amen; We, whose names are underwritten, the loyall subjects of our dread soveraigne Lord, King James, by the grace of God, of Great Britaine, Franc, and Ireland king, defender of the faith, etc., haveing undertaken, for the glorie of God, and advancemente of the Christian faith, and honour of our king and countrie, a voyage to plant the first colonie in the Northerne parts of Virginia, doe, by these presents, solemnly and mutualy, in the presence of God, and one of another, covenant and combine ourselves togeather into a civil body politick, for our better ordering and preservation and furtherance of the ends aforesaid; and, by virtue hearof, to enacte, constitute, and frame, such just and equall lawes, ordenances, acts, constitutions and offices, from time to time, as shall be thought most meete and convenient for the generall good of the Colonie, unto which we promise all due submission and obedience. In witnes whereof we have hereunder subscribed our names, at Cap Codd, the 11th of November, in the year of the raigne of our sovereigne lord, King James, of England, Franc, and Ireland the eighteenth, and of Scotland the fifti-fourth, Anno Domini, 1620.
They later received a patent from the Council for New England, but were never able to get an Independent charter. They worked out a scheme of government including a system of town representation. They were finally, 1691, incorporated into Massachusetts Bay.
A charter was granted to the "Governor and Company of Massachusetts Bay."
In the royal grant nothing was said about where the seat of government was to be. Therefore a group of Puritan stockholders removed the company and its charter to the New World. According to the royal grant the government was to be intrusted to a governor, deputy, and eighteen assistants, elected annually by the whole body of freemen or members of the corporation. Four times a year the governor, assistants, and freemen were to meet in a general court.
The Connecticut River towns met at Hartford, January 14, and adopted the "FUNDAMENTAL ORDERS." This document "has been justly pronounced the first written constitution framed by a community, through its own representatives, as a basis for government."
The constitution contained no recognition, whatsoever, of any superior authority in England. It was copied in large part from the unwritten constitution which had grown up in Massachusetts, though in Connecticut church membership was not required for the suffrage.
PREAMBLE OF THE FUNDAMENTAL ORDERS OF CONNECTICUT--1639"Forasmuch as it hath pleased the Allmighty God by the wise disposition of His divyne providence so to order and dispose of things that we the Inhabitants and Residents of Windsor, Harteford and Wethersfield are now cohabiting and dwelling in and uppon the River of Connectecotte and the Lands thereunto adjoyneing; And well knowing where a people are gathered togather the word of God requires that to maynetayne the peace and union of such a people there should be an orderly and decent Government established according to God, to order and dispose of the affayres of the people at all seasons as occation shall require; doe therefore assotiate and conjoyne ourselves to be as one Publike State or Commonwealth, and doe, for our selves and our Successors and such as shall be adjoyned to us att any time hereafter, enter into combination and Confederation togather, to mayntayne and presearve the Liberty and purity of the Gospell of our Lord Jesus which we now professe, as also the disciplyne, of the Churches, which according to the truth of the said gospell is now practised amongst us; As also in our Clvill Affaires, to be guided and governed according to such Lawes, Rules, Orders and decrees as shall be made, ordered & decreed, as followeth:"
According to the framework of government which was then laid down the lawmaking body was to be made up of a Governor and Assistants, elected by the whole body of freemen, and four deputies, elected by each town. This general legislative body had the right "to make lawes or repeale them, to graunt levyes, to admitt of freemen, dispose of lands undisposed of, to severall Townes or persons, and also shall have power to call either power or Courte or Magestrate, or any other person whatsoever into question for any misdemeanour and may for just displace or deale otherwise according to the nature of the offence, and also may deale in any other matter, that concerns the goods of this commonwelth excepte election of Magestrats, which shall be done by the whole body of Freemen."
II. GROWTH OF THE FEDERAL IDEA,
1643 to 1765--122 Years
During these 122 years both the colonists and the home government felt the need of some bond of colonial union. The colonists were forced to realize their need on account of the troubles with the French, Dutch, and the Indians. The English ministry saw the necessity on account of the difficulties of administration.
UNITED COLONIES OF NEW ENGLAND
1643 TO 1684--41 YEARS
Articles of confederation for the UNITED COLONIES OF NEW ENGLAND were agreed to by Massachusetts, Plymouth, Connecticut, and New Haven.
There were several weaknesses in these articles. There was, of course, no action on the individual citizen, the federation was limited to the New England states, and Massachusetts, while contributing most in men and money, was given only the same amount of representation that was given to the other confederates. A fugitive slave clause, requiring the return of all such fugitives, was included In the articles.
EXTRACTS FROM THE NEW ENGLAND CONFEDERATION.-1643.
The preamble to the Articles gives the name and purpose of the league and then follow the several articles.WHEREAS wee all came into these parts of America with one and the same end and ayme, namly, to advaunce, the kingdome of our Lord Jesus Christ, and to enjoy the liberties of the Gospell in puritie with peace. And whereas in our settleinge (by a wise Providence of God) we are further dispersed upon the Sea Coasts and Rivers then was first Intended, so that we cannot according to our desire, with convenince, communicate in one Government and Jurisdiccon. And whereas we live encompassed with people of severall Nations and strang languages which hereafter may prove injurious to us or our posteritie. And forasmuch as the Natives have formerly committed sundry insolences and outrages upon severall Plantacons of the English and have of late combined themselves against us. And seeing by reason of those sad Distraccons in England, which they have heard of, and by which they know we are hindred from that humble way of seekinge advise or reapeing those comfortable fruits of protection which at other tymes we might well expecte. Wee therefore doe conceive it our bounden Dutye without delay to enter into a present consotiation amongst ourselves for mutual help and strength in all our future concernements. That as in Nation and Religion, so in other Respects we bee and continue one according to the tenor and true meaninge of the ensueing Articles: Wherefore it is fully agreed and concluded by and betweene the parties of Jurisdiccons aboue named, and they joyntly and seucrally doe by these presents agreed and concluded that they all bee, and henceforth bee called by the Name of the United Colonies of New-England.
II. The said United Colonies, for themselves and their posterities, do joyntly and severally, hereby enter into a firme and perpetuall league of friendship and amytie, for offense and defense, mutuall advise and succour, upon all just occasions, both for preserving and propagateing the truth and liberties of the Gospel, and for their owne mutuall safety and wellfare.
IV. It is by these Confederats agreed that the charge of all just warrs, . . . shall both in men and provisions, and all other Disbursements, be borne by all the parts of this Confederacon, in different proporcons according to their different abilitie, in manner following, namely, that the Commissioners, for eich Jurisdiccon from tyme to tyme, as there shalbe occation, bring a true account and number of all the males in every Plantacon, or any way belonging to, or under their severall Jurisdiccons, of what quality or condicion soeuer they bee, from sixteene years old to threescore, being Inhabitants there. And That according to the different numbers which from tyme to tyme shalbe found in eich Jurisdiccon, upon a true and just account, the service of men and all charges of the warr be borne by the Poll: Eich Jurisdiccon, or Plantacon, being left to their owne just course and custome of rating themselves and people according to their different estates, with due respects to their qualities and exemptions among themselves, though the Confederacon, take no notice of any such priviledg: . . .
V. It is further agreed That if any of these Jurisdiccons, or any Plantacons vnder it, or in any combynacon with them be envaded by any enemie whomsoeuer, upon notice and request of any three majestrats of that Jurisdiccon so invaded, the rest of the Confederates without any further meeting or expostulacon, shall forthwith send ayde to the Confederate in danger, but in different proporcons, namely, the Massachusetts and hundred men sufficiently armed and provided for such a service a jorney, and eich of the rest fourty-five so armed and provided, or any lesse number, if lesse be required, according to this proporcon. . . .
VI. It is also agreed that for the managing and concluding of all affairs proper and concerneing the whole confederacon two Commissioners shalbe chosen by and out of eich of these foure jurisdiccons, namely, two for the Massachusetts, two for Plymouth, two for Connectacutt and two for New Haven; being all in Church fellowship with us, which shall bring full power from their severall generall Courts respectively to heare, examine, weigh and determine all affairs of our warr or peace, leagues, ayds, charges and numbers of men for warr, divission of spoyles and whatsoever is gotten by conquest, receiucing more Confederats for plantacons into combinacon with any of the Confederates, and things of like nature which are the proper concomitants or consequence of such a confederacon, for amytie, offense or defense, not intermeddleing with the gouernment of any of the Jurisdiccons which by the third Article is preserued entirely by themselues. But if these eight Commissioners, when they meete, shall not all agree, yet it is concluded that any six of the eight agreeing shall have power to settle and determine the business in question: But if six do not agree, that then such proposicons with their reasons, so farr as they have beene debated, be sent and referred to the foure generall Courts, vizt. the Massachusetts, Plymouth, Connectacutt, and New Haven: And if at all the said Generall Courts the businesse so referred be concluded, then to bee prosecuted by the Confederates and all their members. It is further agreed that these eight Commissioners shall meete once every yeare, besides extraordinary meetings (according to the fift Article) to consider, treate and conclude of all affaires belonging to this Confederacon, which meeting shall ever be the first Thursday in September.
The Long Parliament, for better administration, gave general control over the affairs of all the colonies to the Lords of Trade and Plantations.
Maryland, by legislative enactment, established the principle of religious toleration.
EXTRACT FROM THE MARYLAND TOLERATION ACT--April, 1649
[This is taken from Brown's Archives of Maryland," I, 244-247.]And whereas the enforceing of the conscience in matters of Religion hath frequently fallen out to be of dangerous Consequence in those commonwealthes where it hath been practised, And for the more quiett and peaceable government of this Province, and the better to preserve mutuall love and amity amongst the Inhabitants thereof. Be it Therefore . . . enacted (except as in this present Act is before declared and sett forth) that noe person or persons whatsoever within this Province, or the Islands, Ports, Harbors, Creekes, or havens thereunto belonging professing to beleive in Jesus Christ, shall from henceforth bee any waies troubled, Molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof within this Province or the Islands thereunto belonging nor any way compelled to the beleife or exercise of any other Religion against his or her consent, soe as they be not unfaithfull to the Lord Proprietary, or molest or conspire against the civill government established or to bee established in this Province under him or his heires. And that all & every person and persons that shall presume Contrary to this Act and the true intent and meaning thereof directly or indirectly either in person or estate wilfully to wrong disturbe trouble or molest any person whatsoever within this Province professing to believe in Jesus Christ for or in respect of his or her religion or the free exercise thereof within this Province other than is provided for in this Act that such person or persons soe offending, shalbe compelled to pay trebble damages to the party so wronged or molested, and for every such offence shall also forfeit 20s sterling in money or the value thereof, half thereof for the use of the Lo: Proprietary, and his heires Lords and Proprietaries, of this Province, and the other half for the use of the party soe wronged or molested as aforesaid, Or if the partie soe offending as aforesaid shall refuse or bee unable to recompense the party see wronged, or so satisfy such ffyne or forfeiture, then such Offender shall be severely punished by publick whipping & imprisonment during the pleasure of the Lord Proprietary, or his Lieutenant or cheife Governor of this Province for the tyme being without baile or maineprise. . . .
Charles II created a Council for Foreign Plantations.
Charles confirmed the charter of Massachusetts and granted a new one to Connecticut.
This last named consisted practically of the Fundamental Orders of 1639 and such additions as the General Court had made to it. Rhode Island also received a liberal charter in 1663.
A conference consisting of representatives from Maryland, Virginia, and New York met at Albany to enter into treaty negotiations with the Seneca Indians.
The King vested the control of colonial affairs in a new board, called the Lords of Trade and Plantations.
Delegates from Virginia, Maryland, New York, and Massachusetts held a conference at Albany to treat with the Five Nations.
James II sent over SIR EDMOND ANDROS to be Governor-General of the Dominion of New England. Two years later his power was enlarged and he was made "Captain-General and Governor-in-Chief of all that tract of land from forty degrees north latitude to the St. Croix and St. Lawrence rivers and westward to the South Sea, Pennsylvania and Delaware only excepted."
This was a serious attempt to unite the various colonies under the rule of one man. Andros ruled autocratically, but the flight of James II caused his downfall.
The massacre of Schenectady caused a general meeting to be held in New York for the purpose of raising troops. Massachusetts, New York, Virginia, and Maryland sent delegates.
One of the earliest plans for a general colonial union coming from America was that submitted by William Penn.
PENN'S PLAN OF UNION.The plan provided for two delegates from ten provinces to meet at New York, once a year, the governor of that state, appointed by the King, acting as chairman. The business of the delegates was stated by the sixth article to be as follows:
"To hear and adjust all matters of Complaint or difference between Province and Province. As, 1st, where persons quit their own Province and goe to another, that they may avoid their just debts, tho they be able to pay them; 2nd, where offenders fly Justice, or Justice cannot well be had upon such offenders in the Provinces that entertaine them; 3dly, to prevent or cure injuries in point of Commerce; 4th, to consider of ways and means to support the union and safety of these Provinces against the publick enemies. In which Congresse the Quotas of men and charges wlll be much easier, and more equally sett, than it is possible for any establishment made here to do; for the Provinces knowing their own condition and one another's, can debate that matter with more freedome and satisfaction and better adjust and balance their affairs in all respects for their Common safety."
As the result of a memorial to the King by the Lords of Trade, the King appointed the Earl of Bellomont Captain-General and Governor of New York and territories depending thereon in America.
Charles Davenant submitted a plan of colonial union to the Lords of Trade.
This was followed by various plans and suggestions looking to the same end by: Livingston, 1701; Earl of Stairs, 1721; Coxe, 1722; Kennedy, 1751, and others.
THE ALBANY CONVENTION
The approach of the French and Indian War caused the Lords of Trade to call an inter-colonial congress at Albany, June 19, 1754. The purpose of the meeting was primarily to agree to a treaty with the Six Nations and to provide for united action against the French. But, on the initiative of Massachusetts, plans of union and confederation were considered. The plan finally decided on was largely the work of Franklin. According to him, "the Crown disapproved of it, as having too much weight in the democratic part of the constitution, and every assembly as having allowed too much to prerogative; so it was totally rejected."
FRANKLIN'S PLAN OF UNION--1754This interesting plan, which was somewhat similar to a plan worked out by Franklin in 1775, provided for: 1. An executive called a president general, appointed and paid by the crown, who was given the right of absolute veto; 2. A legislature, called the grand council, which was to meet once a year, and each colonial house of representatives was to send to the meeting from 1 to 7 delegates apportioned according to its share of federal taxes; 3. The grand council was to make laws (subject to the royal veto in council in three years); to control Indian affairs (with the aid of the president general); to establish and make laws for new settlements on purchased Indian lands; to regulate Indian trade; to build forts, maintain ships and soldiers, and vote taxes therefor; to appoint a general treasurer and special treasurers in the colonies; to share in the appointment of civil and military officers; 4. Particular colonies were allowed to retain their civil and military establishments and to defend themselves individually, if necessary, submitting a bill of expenses to the grand council.
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