CHAPTER XIV

THE FOUNDING OF THE REPUBLIC

1776-1800

The organization of republican governments by the American people was a revolutionary act of the highest degree of boldness, which pronounced them traitors or patriots, as the fortune of war might determine. The transition from colonies to states and from integral parts of the United Kingdom to co-ordinated commonwealths of a new nation was effected in an orderly manner quite without parallel in history. This was due to the character of the people and the condition of Great Britain and the colonies at the time. The Anglo-Saxon possesses an unlimited capacity for order, which he has displayed to his own and the world's highest advantage at critical moments of history. In America, the transition from a monarchical to a republican form chiefly affected the executive power. The legislative had been elective almost from the beginnings of government in Virginia, indeed from that July day in 1619 when there assembled in the church at Jamestown the first popular assembly in America.

In the charter colonies, the governors had been elective also, and no greater grievance had found voice in America than the forfeiture of colonial charters and the consequent deprivation of the power of choosing the executive by popular election. In the proprietary colonies, the governor was an hereditary personage; in the royal colonies, he was an appointee of the crown. The consequence was the same: a continuous popular outcry against the executive and a perpetual struggle between him and the representatives of the people. This somewhat monotonous contention constitutes the greater part of colonial political history. Democracy had not yet gained sufficient strength to demand the popular election of judges, who were removed from the

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turmoil of the colonial struggle by the terms of their office, which was for good behavior, and by the manner of their choice, which was by executive appointment. The transition from colony to state signified that the principle of representation should be applied henceforth to the executive, and as time proved, ultimately, to the judiciary. But the popular election of judges was not advocated in the eighteenth century and did not become "a political reform" until the nineteenth was wellnigh half gone.

The American Revolution consisted, in its civil changes, in the organization of a republican form of government in the place of a form partly republican and partly monarchical. Because the monarchical element was weak, the transition was easily made. In thinking of the civil transformation, one must not confuse incidents of war with changes in civil affairs. The colonists did not break with the past when they took up civil government in 1776. They did not disturb the existing republican foundation. They brought executive and administrative functions, as they understood them, into conformity with legislative, and thus established republican forms of government according to the political standards of the eighteenth century.

The civil experience of the colonies, since 1619, was the basis of the new structure. For a century and a half, laws had been passed by the assemblies, and most of them were in print. From time to time the assemblies had formulated resolutions and declarations embodying their understanding of the principles of government, which had become the common thought of the people. No assembly hesitated to express its official opinion of the conduct of imperial affairs.

As we approach the year of the Stamp Act, 1765, and pass through the following decade, the declarations of the assemblies become a political commentary on the acts of Parliament, the conduct of the ministry, and the powers and prerogatives of the crown. For a dozen years prior to the actual clash of arms, the colonies had been in a dangerously critical mood. As we would now say, they had entered upon a course leading either to autonomy or to the pains and penalties of treason. As early as 1765, a con. vention of delegates, known as the Stamp Act Congress,

assembled in New York City, and issued a declaration of rights which pointed the way the Americans were going.* They owed allegiance to the British crown and all subordination to Parliament because they were liege subjects and entitled to all the inherent rights and liberties of nativeborn Englishmen; no taxes, therefore, could be imposed upon them save with their own consent, given personally, or by their representatives. Geographical position, as well as prevailing sentiment, forbade their representation in the House of Commons. Their only representatives were their delegates, elected to their own assemblies, and no taxes had ever been imposed or could be constitutionally imposed on them but by their own legislatures.

A people who would boldly put forth ideas like these were not far from political independence. They were already in possession of the foundation of republican forms of government. The successful assumption of these forms might be made at any time when provocation would make it appear that it was to their best interests to declare independence. But political revolutions rest on sound philosophy, otherwise discontent ends merely in rebellion. In attempting to measure the forces which contributed to the American Revolution, we must not overlook Montesquieu and Blackstone, Harrington, Sidney, Penn, and More; nor for a moment can we lose sight of that immeasurable influence embodied in the English Bible. The effect of the Bible in America was paramount in encouraging every man to think and act for himself, being responsible to God rather than to man. Undoubtedly, as the Bible was the book most generally read, it was the source of that spirit of liberty which possessed the land; it was the guide and counselor of the wayfaring man; its teachings inevitably bred democracy and independence.

Montesquieu's Spirit of Laws, published in Geneva in 1748, became at once a manual of politics, and in America

the first book of government. It may be safely said that every man of eminence in public life in America during the last half of the eighteenth century was familiar with Montesquieu. His principles of government and the deductions * Preston's Documents, 188-192.

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which American statesmen drew from them became the "higher law" of the age. When Congress issued an appeal to the inhabitants of Quebec,* at the outset of the war, Montesquieu was cited as a higher authority than the British Constitution. King George and his advisers viewed this appeal to a "higher law" with contempt rather than alarm, just as a century afterward Calhoun and his followers viewed Seward's famous utterance on the admission of California. But in revolutionary times there is always an appeal to a "higher law." In the opening years of the American Revolution, it was to "the principles of republican government," and "the rights of man"; in 1850, it was to "the spirit of the Constitution" and the "principles of our civil institutions"; ten years later, it was to preserve the Union. These historic terms signify that forms of government are subject to subtle correctives, and it is well for a country when those to whom its public business is intrusted are capable of detecting the signs of the times, and of adjusting the form of government to the wants of the state. Montesquieu, to the statesmen of the eighteenth century who gave form to our republican institutions, was a political philosopher and friend. He suggested political theories, possible civil courses, and probable economic consequences.

Twenty years after Montesquieu's Spirit of Laws, appeared Blackstone's Commentaries. They at once became the legal text-book of the English-speaking race. Blackstone's teachings were practical; Montesquieu's, theoretical; Blackstone was constructive and helpful to men upon whom the duty of organizing a government on a popular basis had come suddenly. It might seem that a writer so ultra-monarchical as Blackstone would be of slight service to revolutionary republicans; on the contrary, he aided them in putting their ideas into legal form. The first thing for a body of revolutionists to do is to secure a legal foundation for their acts. From a citadel of laws and constitutions they can issue forth armed with at least the appearance of authority, order, and justice. Blackstone taught the Americans how to act constitutionally. In his introduc* Journals of Congress, I, 58-65.

†Works of William H. Seward, I, 66, 74, 108, 130.

tion, which treats "Of the Nature of Laws in General," he discusses the "nature of society and civil government; and the natural inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws." The only true and natural foundations of society, he continues, are the wants and fears of individuals. The sense of weakness and imperfection keeps mankind together, demonstrates the necessity of union, and "is the solid and natural foundation as well as the cement of civil society. And this is what we mean by the original contract of society, which, though perhaps in no instance it has been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied in the very act of associating together; namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole; or in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection should be certainly extended to any."'*

This, then, was the compact theory of government which our early statesmen found fully set forth by English authority, and most happily applicable to America. Early in 1774, the leaders of the revolution in Massachusetts accused the king of violating the compact of government by military intervention in the affairs of that province.t County conventions passed formal resolutions which set forth the violation, and these so-called "resolves" were vigorously circulated through the province and among other colonies. Otis and his associates wished to make out that the king was the aggressor, and thus put him in the wrong. To all except the loyalists, it seemed that the leaders had made out their case. Blackstone was a weaker authority for the compact theory than was the course of events in America. The Burlington convention, in framing a provisional constitution for New Jersey, in 1776, declared that as “all the

* Blackstone's Commentaries, I, 47.

Journal of Each Provincial Congress of Massachusetts, 1774-75. Appendix, Proceedings of the Conventions of the People in the Counties.