through legislation. The comparatively slight intimation of the importance of an independent judiciary contained in the first State constitutions hardly prepares us for the elaborate application of the idea in the Constitution of the United States and its defence in The Federalist. The defects of colonial government were intimated in the provision forbidding judges to hold other offices during their terms of service, or to receive fees in addition to their salaries; and for the first time judges were subject to removal by the Governor on recommendation of two-thirds of each House.* An administrative measure of this kind would scarcely be sought among the clauses of a bill of rights. It illustrates what is not rare in constitutions, how a provision transferred to the bill of rights from its normal place in the article on the legislative, executive, or judiciary, in order to emphasize its importance and to secure it from amendment, is placed in the most permanent part of the instrument. The influence of Blackstone may be detected in the language of two constitutions, which, in applying the theory of compact, declared that men surrender some of their natural rights when they enter society. The clauses on freedom of worship recognized the rights of conscience, and public opinion was sufficiently sensitive to the rights of those who had scruples against bearing arms— * Maryland, 1776. New Hampshire, 1784, 1792. Indefinite Characteristics of Late Constitutions and these were chiefly of the Society of Friendsto allow them to substitute a money equivalent. A provision destined to be claimed later in support of State sovereignty was adopted by two Northern and two Southern States, reserving to them the exclusive regulation of their internal. police.* The constitutions adopted since 1870 have been criticised as partaking too much of the character of a code. Some of the first are open to the same criticism. It is a wise convention that knows the difference between a constitution and a code. The last quarter of the eighteenth century was an era of transition and reforms, some of which are pushed forward in these early organic laws. The common-law maxim, "The greater the truth the greater the libel," was changed, and the jury with the evidence before it should determine both the facts and the law. Another reform changed the principle long made familiar by the saying, "Once an Englishman, always an Englishman." Henceforth the right of emigration, and, as a consequence, in later times the right of expatriation, should be accounted natural and inherent. + * Pennsylvania, Maryland, and North Carolina, 1776; Vermont, 1777, 1786, 1793. + Maryland, 1776; Vermont, 1777, 1786. Probably due to the fact that these constitutions were made by the Legislatures acting as conventions. States having boundary disputes, Vermont, 1777, 1786, 1793; Pennsylvania, 1776, 1790; Kentucky, 1792, 1799. CHAPTER III THE FIRST ORGANIZATION OF GOVERNMENT IN THE STATES THOUGH freedom in religion was a characteristic reform of the times, the freedom was relative: great if one looked backward, slight if he looked forward. There was still a predominant disposition to disqualify the non-religious part of the community from voting and from office. By the non-religious was meant all who did not formally and publicly accept a prescribed creed or a theological system. This disqualification was the first to disappear in the struggle for the extension of the franchise which began about 1795 with the Democratic party. But the religious disqualifications were less rigorous than during colonial days. Suffrage extension was a reform destined to agitate the public mind down to our own time. Another was a step towards the abolition of imprisonment for debt;* another, that the estates of suicides, traitors, and persons killed by accident should not be forfeited to the commonwealth, but descend to the heirs in the usual * Pennsylvania, 1790; traceable to Penn's Frame of Government, April 25, 1682; to the Laws Agreed Upon in England, May 5, 1682; to Charter of Privileges, 1701. Social Distinctions in the Early Colonies manner:* a clear abolition of the common-law provision. It was to be expected that the new democracy would provide against hereditary emoluments and distinctions and titles of nobility, and that a precedent would be established making it unconstitutional for a citizen to accept a gift from a foreign power without the consent of the State. What a democracy would not accept it could not well grant itself, and the state was made incapable of bestowing titles. It is now quite forgotten that social distinctions were sharper then than now. Jefferson and his party made political capital out of the aristocratic ways of the Federalists, and the wave that later swept Jackson into the Presidency engulfed for two generations at least the pretensions of the class described by John Adams as "the well born." Missouri and Arkansas were commonwealths before the levelling spirits were quieted. The crest of the anti-nobility wave was always along the frontier. Jefferson affected negligence, and made political capital out of dishevelled dress. Political campaigns are still conducted on home-spun tactics. The one great triumph of the Whig party was won when it abandoned federal traditions, identified itself with the people, and had monster meetings and ox-roasts. Though the States guarded the obligations of contracts entered into by citizens, only twof de * Pennsylvania, 1790; Delaware, 1792; Kentucky, 1792, 1799. + Delaware, 1792; Tennessee, 1796, limited the right to its own citizens. clared themselves suable at law, and one of these limited to its own citizens the right to bring the suit. The first, Delaware, adopted the provision two years before the great case* was decided that led to the eleventh amendment; the second, Tennessee, two years after. Though all the constitutions provided executive terms, only one prescribed a geographical rotation in the executive office. The Governors of Maryland for three quarters of a century came alternately from the eastern and the western shore. This commonwealth was the first to proscribe monopolies, in language now familiar to the States of the new Northwest. The proscription of 1776 began the industrial campaign that is still going on. Colonial experience and the political philosophy of the day combined to declare the provisions in the bills of rights inviolable, or, as the phrase went, beyond constitutional sanction." Each convention sought to perpetuate its work. Yet the sixteen States that comprised the Union in 1800 had adopted twenty-six constitutions in twenty-four years. This activity was engendered by the incompleteness of those made amid the stress of war. It is somewhat paradoxical that constitutions, like governments, change most in times of peace. From these first declarations the commonwealths have departed but little. This was inevitable. The doctrine of natural rights, of the social compact, and of popular sovereignty could * Chesholm vs. Georgia, 2 Dallas, 419. |