« ZurückWeiter »
issue of the struggle. While every limb was yet braced and every muscle strained in the contest, they quietly made preparations for the state of things that was to ensue, when Great Britain should acknowledge her defeat, and the Americans should take their stand among the independent nations of the earth. Peace was not declared till 1783; New Hampshire formed a constitution in 1775; New Jersey, South Carolina, Virginia, Pennsylvania, Delaware, Maryland, and North Carolina, in 1776, the first three before the date of the Declaration of Independence; Georgia and New York, in 1777; Massachusetts, in 1780. The forms
of government thus established were not arbitrary and novel, created by mere speculation, and dependent for success on future experiment. They were founded on existing institutions; they recognized preëxistent rights; they authorized ancient customs. They supplied omissions, it is true; but they made no unnecessary innovations. They were the old forms of polity, adopted by the first settlers on this continent, with such modifications only as were rendered necessary by the transition from a state of partial, to one of perfect, independence. They were not made by philosophers and theorists, but by practical men.
It would not be a difficult task to analyze the constitutions first established by each of the thirteen Colonies, especially those of New England, and to trace almost every important enactment in them to provisions in the old charters, or to privileges tacitly granted by the crown, or to customs founded on long prescription. We shall have occasion hereafter to consider more particularly the doctrines and the practice of the men of the American Revolution. Our only purpose here is to point out the unanimity of opinion and conduct, in this respect, of all the Colonies at the time when they emancipated themselves from British rule; to show, that while some adopted what we are accustomed to consider as "new constitutions, and some did not, all adhered, with greater or less fidelity, as the case required, to the forms and institutions with which they were familiar from long experiment, and which were endeared to them by old associations. We can characterize their practice in a word, by saying, that it was the very opposite of that of the French theorists, who, from 1789 till 1800, successively formed and annihilated
merely speculative constitutions, with such marvellous rapidity, for their unhappy and distracted country.
It was the good fortune of Connecticut and Rhode Island, that, for a long period before the Revolution, even from the time of their first settlement, they had enjoyed essentially republican forms of government. They obtained charters from the crown, respectively in 1662 and the following year, which, in fact, with merely nominal reservations, empowered the people to govern themselves. Chalmers, a royalist writer of the Revolutionary period, objects to these charters as establishing "a mere democracy, or rule of the people." Governor Bernard, in his private correspondence with the British ministry,* speaks of "the two republics of Rhode Island and Connecticut," and says there will be no security for the prerogative in the other Colonies, so long as these two "democratic governments are allowed to exist. That such language was properly applied to them appears on the very face of the charters, which, in truth, authorized the people to choose all their own officers, and enact all their own laws. "The laws of these States," says Grahame, the able and impartial historian of America, "were not subject to the negative, nor the judgment of their tribunals to the review, of the king." Nay, "so perfectly democratic were their constitutions, that in neither of them was the governor suffered to exercise a negative on the resolutions of the Assembly." These were the great privileges they enjoyed, and which distinguished them above every other Colony in America. There was no necessity, therefore, for amending or abrogating the charters, when the union with England was dissolved. The merely formal limitations of the power of the Colonists, the provision, for instance, that their laws and ordinances should be "not contrary and repugnant unto, but as near as may be agreeable to, the laws of this our realm of England," then expired of themselves,
* Manuscript Records of the Board of Trade, from copies obtained by a friend, which he has kindly allowed us to examine.
"There were no regular means of ascertaining this conformity, these States not being obliged, like Massachusetts, to transmit their laws to Eng. land. On a complaint from an inhabitant of Connecticut, aggrieved by the operation of a particular law, it was declared by the king in council, that their law concerning dividing land inheritance of an intestate was contrary to the law of England and void'; but the Colony paid no regard to this declaration." Grahame, I. 421.
After the Revolution,
and from the necessity of the case. the people continued, as they had done before, to "admit freemen, choose officers, make laws and ordinances, array the martial force of the Colony for the common defence, enforce martial law, and exercise other important powers and prerogatives."* In so doing, they conformed to the practice of all the other Colonies at the same epoch, by adhering as closely as possible to their ancient rights, usages, and institutions. They preserved both the substance and the form of the constituted body politic throughout the convulsions of the Revolutionary period. During that storm, they did not sink or abandon the ship; they only deposed the commander, and changed the flag.
Although these charters were granted by Charles the Second, they derived their whole force and efficacy within the Colonies themselves from the formal and voluntary acceptance of them by the people. They were not imposed upon the Colonists, but were solicited by them; they were granted, or allowed, and not enacted, by the sovereign power. The drafts were made by the Colonial agents, acting under the instructions of their constituents; they were sanctioned by the monarch at their solicitation. After the Revolution in 1660, the people of Rhode Island thought their old charter, procured by Roger Williams in 1643, having been obtained from the parliament under the Commonwealth, would not be respected by the king; and they therefore appointed Mr. John Clarke, who was then in England, to be their agent "for the preservation of their chartered rights and privileges." He succeeded in his mission, and a new instrument was granted by the king. This new charter of Rhode Island was received in November, 1663, by the Court of Commissioners at Newport, at a very great meeting and assembly of the freemen of the Colony." It was then accepted, ratified, and made the fundamental law of Rhode Island and the Providence Plantations. "Thanks to the King, thanks to Lord Chancellor Clarendon, and thanks and a gratuity of one hundred pounds to Mr. Clarke, their agent, were unanimously voted." A more expressive and striking scene of a people forming a government for themselves, and making it binding on them
The language is that of Judge Story, who thus enumerates the powers which the people of Rhode Island exercised under the charter. Commontaries on the Constitution. Abridged edition. p. 38.
selves and their posterity, was never witnessed. day after the charter was received, the old government surrendered to the new.
Of course, the fundamental law of the body politic, thus formed and solemnly ratified, was to continue until abrogated by the same power which created it. This power was a formal vote of the freemen of the Colony, at a meeting legally called and authorized. The government and the charter ratified by that vote did continue, till it became the oldest constitutional charter in the world. "This charter of government," says Mr. Bancroft, writing in 1836, “constituting, as it then seemed, a pure democracy, and establishing a political system which few besides the Rhode Islanders themselves believed to be practicable, is still in existence ;" and "nowhere in the world have life, liberty, and property been safer than in Rhode Island." During the reign of James the Second, and the arbitrary rule of Sir Edmund Andros, it was suspended, but not abrogated, nor forfeited. After the revolution of 1688, the Colony resumed it, and continued to maintain and exercise its powers down to a very recent period. Even the crown lawyers and the other favorers of the prerogative, who were then numerous and active, who succeeded at this time in destroying the old charter of Massachusetts, and who hated the "democratic governments" of Rhode Island and Connecticut, could not, on the ground of the acts of James and the change in the dynasty at home, destroy these charters, or prevent them from continuing in effect.
If the revolution of 1688 did not annul the charters, so neither did the revolution of 1776. At both periods, there was a change of the sovereign power in the state; at the former, it was transferred, contrary to custom and the usual course of law, from one person to another; at the latter, it was taken away from an individual, and vested in the state itself; that is, in the constituted body politic," the people." George the Third forfeited his power in America in the same way in which James the Second lost his throne in England, by arbitrary and oppressive acts, done in violation of law. But the constitution and the charter survived both these shocks. The Bill of Rights adopted in the former case embodies nearly the same essential principles as our own Declaration of Independence. It recognized the
power of the state to change its sovereign, without being obliged at the same time to destroy itself, or to resolve the body politic into its primitive elements, and to begin the work of forming society and government anew. In England, the monarch was dethroned, or in the more gentle but lying phrase of the day- he had "abdicated"; and parliament assumed the power to absolve Englishmen from the duty of allegiance to him, and to confer the crown upon William and Mary. They did not go about forming a new constitution, and organizing a new government. Their work was not destructive, but conservative. They did not need even to reaffirm preexistent statutes and principles, except those few the authority of which had been marred or violated by the arbitrary conduct of the Stuarts, and which were therefore specified, and enacted over again, as it were, in the Bill of Rights. Their silence about new forms proved that they recognized the old, which, having once been formally established, were to continue to exist until they should be as formally abrogated. Therefore, the constitution at home and the charters in the Colonies those of them, at least, which had not been positively annulled by the decree of a court of law continued to exist and to preserve their binding force; and neither Jacobites, crown lawyers, nor patriots questioned their legal authority.
The case was precisely the same at the time of the Amercan Revolution. The people of Rhode Island and Connecticut did not annul their charters at this period, for they were attached to these instruments, which had been the guardians of their liberties and their rights for more than a century, and had made them the envy of the surrounding Colonies. They did not enact or accept them over again, for such an act would have implied, that these instruments had possessed no rightful force or legal efficacy for the past. The Colonies became independent States just as children become men; they did not forfeit their birthright because they had attained their majority. Under these charters, Rhode Island and Connecticut became parties to the Declaration of Independence. This new deed of their liberties, the "Magna Charta" of America, was signed by delegates appointed to Congress, in behalf of these Colonies, by the General Assemblies therein legally constituted, according to old usage. These delegates, by signing the Declaration,