CHAPTER I.
THE ANGLO-AMERICAN COLONIES.
IT has been a prevalent error in political writings to overestimate intelligence, and underestimate the power of what, for want of a better term, may be called instinct. This error appears notably in the writings of Grotius, Hobbes, Spinoza, Puffendorf, Locke, Rousseau, — in fact, in all writings where the origin of government is explained by the hypothesis, now exploded, of an original social contract, based upon the element of intelligent selection. A safer course is adopted by some recent writers, who may be said to incline to the view believed to have been first advanced by Aristotle, which regards government as a result of natural social growth.[1]
The later theory has been aptly stated thus: "The long continuance of a people under any given political order engenders a habit and action, which ripens into a political instinct and becomes powerful in determining the form of institutions and the direction of political progress.[2] In the early stages of political life, changes are less frequent than in the later stages, and opportunity is thereby offered for the ideas of social organization peculiar to primitive times to impress themselves upon the mind, and in the course of centuries of political monotony to ripen into a firmly fixed instinct. Thus the political instincts of a race have their origin in a prehistoric age, in an age when generation after generation passes away, leaving no record of change in social forms, or of the acquisition of new ideas. And it is this political instinct that must be taken account of, if we would fully understand political progress; it is in its force and persistence that we discern the main cause of that tendency displayed in kindred nations to preserve in their governments the essential features of the primitive political institutions of the race to which they belong."[3]
Whether such philosophy be sound or not, attention is being increasingly drawn at the present day to the ascertained fact of racial influence on political development, — the essential and continuous potency of racial institutions in the life of nations. Historical writers have directed observation to the actual rise of modern governmental systems from ancient originals, and scientific writers, have applied the theory of heredity to politics, and have asserted the well-nigh automatic play of hereditary traits upon national career and destiny. Quite aside from possible extremes of speculation, few persons will nowadays question the reality of this racial force.
In examining into the sources of the Constitution of the United States, it will be found necessary to bear in mind from the outset that the nation was founded by men, the great majority of whom were of the English branch of the Teutonic race.[4] The colonists were, for the most part, of one blood. Their language and social usages were those of Great Britain. They took with them to America not merely memories of political institutions, but, to a considerable extent, the English law itself. And they continued for a century or more, despite changing conditions, in political union with England as members of one empire.[5]
That they possessed a common nationality in, and were thus subject to England is in itself an important fact; for a strong nation never fails to make an impress upon the minds of its citizens or subjects, and it educates and powerfully moulds their political opinions. Nationality, creates characteristic traits of thought and tendency. And, possibly for this reason, the political development of colonies has been usually, in all the history of the world, through forms similar to those which dominate the parent people.
When in the early part of the seventeenth century English colonization of America began, England had long been a fully developed, homogeneous nation. The Englishmen of the reigns of Elizabeth and James I. possessed a certain stock of political ideas in common. There was agreement in the conception of certain elements of government; and the principal of these elements were: (1) a single executive; (2) a legislative body consisting of two houses, the upper conservative, and the lower representative of the people at large; (3) a distinctive judiciary. There was also agreement in (4) a number of general principles — such as trial by jury, the essential relation of representation to taxation, and the like — derived from the old struggle of the nation for its freedom. It was natural that colonies, set off from the home land as these were, should manifest a tendency to develop such governmental institutions. And this was the actual course of their development. The American colonies were settled mainly by Englishmen, and were subject to Great Britain. And their institutions were mainly of an English nature, except as modified by the provisions of the royal charters under which their governments were organized, and by the circumstances that attended transplanting to a new soil.[6]
This essential political fact is made forcibly clear by any examination of colonial origin and progress. Such examination, at least in brief, is called for, as introducing the present theme. In entering upon it, we will first consider the government of each colony separately, and then the relation of the colonies collectively to the home administration.
The earliest permanent English settlement, within the present territory of the United States, was in Virginia, under a charter granted by James I. in 1606.[7] This charter, which was followed by others in 1609 and 1612, provided for a company having a council resident in England with power to govern under regulations and instructions from the king. As the colonists began to increase, a demand was set up for a voice in the making of the laws. "They grew restless and impatient," Judge Story expresses it, "for the privileges enjoyed under the government of their native country."[8] And to meet this uneasiness, Governor Yeardly called together representatives in a general assembly at Jamestown in 1619, and allowed them legislative powers.[9] Story adds: "Thus was formed and established the first representative 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."[10] So acceptable was it to the people, and so essential to the real prosperity of the colony, that the council in England issued an ordinance in 1621, which gave it a complete and permanent sanction.[11] In imitation of the constitution of the British Parliament, the legislative power was lodged partly in the governor, who held the place of the sovereign; partly in a council of state named by the company, and partly in an assembly composed of representatives chosen by the people. Each branch of the legislature might decide by a majority of votes, and a negative was reserved for the governor. But no law was to be in force, though approved by all three parts of the legislature, until it had been ratified by a general court of the company, and returned to the colony under seal of the court. The ordinance further required the general assembly and the council of state "to initiate and follow the policy of the forms of the laws, customs, and manner of trial, and the administration of justice used in the realm of England, as near as may be."
Thus the government of Virginia, even at that early date, included a personal executive in the governor, representing the sovereign; two houses of legislature, the lower one elected by the people; and a system of justice.
By the annulling of the charter and the dissolution of the company in 1624, the colony came under the rule of the king, exercised through a governor and twelve councillors of his own appointment; and it remained a royal province down to the American Revolution. For many years following this change, there was no second house of legislature; and during the greater part of the reign of Charles I., the sovereign who sought to govern without a Parliament at home, succeeded in governing by his own will in the colony. But after complaints, and some open resistance, Charles sent over Sir William Berkeley, with instructions to summon elected representatives, who should form, with the governor and council, an assembly clothed with full legislative powers. He also set up courts of justice. And thus for the second time by popular demand, Virginia obtained a government embracing the essential points of that of the mother land. English common law underlay the colonial jurisprudence. Trial by jury, taxation by the representatives of the people in assembly, and other characteristic English principles, were incorporated into custom and regulation. Such was Virginia before she became a State of the American union, and her State constitution was essentially an outgrowth of this colonial adaptation of English usage.
To the "Governor and Company of Massachusetts Bay in New England" Charles I. granted a charter in 1628,[12] intending that the corporation should administer its affairs from England. Provision was made for a governor, deputy governor, and eighteen assistants, to serve as a council, with permission to freemen of the company to attend and take part in certain general meetings annually. Laws for the benefit of the distant colony were allowed to be made, "so as such laws and ordinances be not contrary or repugnant to the laws and statutes of this our realm of England." But in the year following the grant of the charter, by a bold stroke on the part of the company the document was transferred to Massachusetts; and it became thenceforth, until its abrogation under James II., the basis of government by the colonists within the colony itself.[13] For a few succeeding years, the administration was conducted by a General Court composed of the governor and assistants, with the assembling of such freemen as were capable of attending in person. But in 1634 the towns sent elected delegates to represent them, though no provision for such a course was to be found in the charter; and ten years later, the governor and assistants on one hand, and the representatives on the other, definitely separated into two houses of legislature. Thus in Massachusetts, as in Virginia, the outlines of English government were worked out in local usage by movement of the colonists themselves.
In 1646 the General Court of Massachusetts sent an address to the Long Parliament, declaring: "For our government itself, it is framed according to our charter, and the fundamental and common laws of England, and conceived according to the same — taking the words of eternal truth and righteousness along with them as that rule by which all kingdoms and jurisdictions must render account of every act and administration in the last day — with as bare allowance of the disproportion between such an ancient populous, wealthy kingdom, and so poor an infant, thin colony as common reason can afford." They then endeavoured to demonstrate the accuracy of their statement by setting forth in parallel columns the fundamental laws of England from Magna Charta, and their own laws.[14]
For New Hampshire, the king issued a commission in 1679, erecting a government with the executive power vested in a president. The president was appointed by the sovereign, and was aided by a council, also of royal appointment, which, together with popularly elected representatives or burgesses, composed the legislature. The council also possessed judicial powers; and it was required in the charter that "the form of proceedings in such cases, and the judgment thereon to be given, be as consonant and agreeable to the laws and statutes of this our realm of England, as the present state and condition of our subjects inhabiting within the limits aforesaid, and the circumstances of the place will admit."[15]
The colonies of Connecticut[16] and New Haven, without awaiting a charter, established governments of their own, consisting of governor, assistants, and deputies composing a general court. The two colonies were merged by the charter granted to Connecticut at the restoration of Charles II., 1662; which document — escaping seizure at the hands of Sir Edmund Andros in the reign of the last Stuart king, by being secreted in an oak — remained in force until so late as 1818, when the State constitution succeeded to it and was modelled upon it. A bill of rights similar to that of Massachusetts was early passed by the colony, and trial by jury was, with other English customs, established in common practice.
Rhode Island, also a union of two previously existing colonies, was chartered in 1644 by Parliament, and in 1663 by Charles II., the usual elements of government being constituted. And the colony itself set forth the customary bill of rights. For about thirty years afterwards, the general assembly met as a single chamber; but from 1696, the governor and assistants acted as an upper house, and the deputies as a lower house.[17 ]The original charter remained until 1842 the fundamental law of the State, and was not until then superseded by a State constitution.
Maryland was granted by a patent of Charles I., in 1632, to Cecilius Calvert, Lord Baltimore, and his heirs, in full and absolute property, saving only the rights of the crown.[18] The patent vested in the proprietor full executive power, and the privilege of making laws, with the co-operation of the colonists. All freemen were permitted to take part in legislation; and the first gatherings for the purpose were held in 1634 and 1635. But in 1639, in consequence of the increase of population, deputies were elected to represent the freemen. Eventually, as in other colonies, the assembly was divided into two houses.[19] And among the earliest laws adopted was one declaring "that the inhabitants shall have all their rights and liberties according to the great charter of England."[20]
Originally colonized by the Dutch, New York and New Jersey did not pass into English hands until 1664. Singularly, however, the Dutch occupation left very little permanent result of a constitutional character.[21] The territory was granted to the Duke of York by two charters of Charles II., one given before and the other after the final acknowledgment of the conquest on the part of the government of the Netherlands.[22]
Under the second charter, the Duke ruled New York until his own accession to the crown as James II. No general assembly was summoned for eight years, but popular clamour became so great, that in 1682 the governor was authorized to establish one, with the right of making laws subject to approval by the proprietor.[23] Six years later the colony declared for William and Mary; and thereafter, although without charter, it was governed as a royal province by crown-appointed governors, and with regular sessions of the legislature. The laws indicate closer adherence to the policy of England than do those of any other colony, and the British common law was the basis of jurisprudence.[24]
Undoubtedly nations do affect one another through example, institutions, literature, and commerce. England and Holland have thus exerted an influence upon each other. So also have England and France. So have America and European peoples other than the Dutch. Dutch influence upon the United States has doubtless been real in several ways. But nothing can be gained by the effort of enthusiasts to exaggerate that influence, or to assert for it a place comparable with the influence of England.
New Jersey was granted by the Duke of York, in 1664, to Lord Berkeley and Sir George Carteret, on the same terms as he himself held New York; and these proprietors in 1664-65 made to the people a concession of the customary forms of government. After political vicissitudes, the proprietary control terminated in the reign of Queen Anne. But though the colony had no charter, and was ruled under royal commissions, the local model of government remained practically unchanged.[25]
The settlement of Pennsylvania and Delaware by the Dutch and Swedes was, as in the case of the original settlement of New York, without much political result. William Penn obtained a patent as proprietor in 1681, and purchased in the following year the rights of the Duke of York over the Three Lower Counties of Delaware. The patent empowered Penn and his successors to make laws and raise taxes, with the consent of the freemen of the country, the king reserving right of veto. The proprietor was permitted to appoint judicial and other officials, to grant pardons and reprieves, to erect courts, to establish corporations, manors, and ports, and to execute locally other functions of the crown.[26]
After some variation in the system of government, a final charter was established in 1701, providing for a governor, council of state, and assembly of deputies.[27] Delaware sent representatives until accorded a legislature of her own in 1703.
Carolina was granted to Lord Clarendon and others by Charles II. The earliest government was set aside in 1669 by a plan originating in the brain of the philosopher Locke, which contemplated an elaborate system of offices of state, an hereditary nobility, and similar features, impossible of realization in an infant settlement of scattered planters.[28] But in 1691 this system was abrogated by popular demand. Carolina became a royal province in 1729, with the usual form of colonial government. The governor convened, prorogued, and dissolved the legislature, and had the right of veto on its enactments. He appointed civil and military officers, and, as has been tersely said, was "invested, as far as compatible, with the executive and judicial powers of the English monarch."[29] North and South Carolina, long practically divided for reasons of convenience, were eventually separated, each having a government of its own.
Georgia was founded in 1732 with a charter from George II. Its earliest administration, by a company resident in England, was so unsuccessful that this charter was soon surrendered, and the colony became a royal province with government of the customary form.[30]
The necessary repetition in these details of the political systems of the colonies is not without value, as evidence of the unanimity with which the colonies followed a common model. Where, at first, in charter or usage, some features of this model were lacking, popular demand invariably was made by the colonists themselves, for the supply of the lack, until the full outline of English governmental institutions was completed, as far as was applicable to colonial conditions.[31]
Referring to this subject, and to the persistence of the old tendency even in later and more modern States of the American Union, Mr. Bryce observes: "The similarity of the frame of government in the thirty-two republics which make up the United States — a similarity which appears the more remarkable when we remember that each of the republics is independent and self-determined as respects its frame of government — is due to the common source whence the governments flow. They are all copies, some immediate, some mediate, of ancient English institutions; viz. chartered self-governing corporations, which under the influence of English habits and with the precedent of the English parliamentary system before their eyes, developed into governments resembling that of England in the eighteenth century. Each of the thirteen colonies had, up to 1776, been regulated by a charter from the British crown, which, according to the best and oldest of all English traditions, allowed it the practical management of its own affairs. The charter contained a sort of skeleton constitution which usage had clothed with nerves, muscles, and sinews, till it became a complete and symmetrical working system of free government."[32]
"The English Constitution was generally the type of these colonial governments," remarks Sir Erskine May. "The governor was the viceroy of the crown; the legislative council, or upper chamber, appointed by the governor, assumed the place of the House of Lords, and the representative assembly, chosen by the people, was the express image of the House of Commons."[33] In the words of the author of the History of the English People, "The colonists proudly looked on the constitutions of their various States as copies of that of the mother-country. England had given them her law, her language, her religion, and her blood."[34]
But the American colonies not only copied English institutions; they long remained politically united to Great Britain, and her government long continued to be their own supreme or imperial government. Though every colony was independent of every other colony, and possessed much freedom of local administration, yet allegiance to the mother-country and to the throne bound all together, and prepared the way for the subsequent federal system of the United States. There was, in fact, even then, a beginning of the federal system, and London was the colonial capital, as Washington of to-day is the federal capital.[35] The colonists were British subjects. The king was "supreme and sovereign lord" of all alike, — the central executive. Parliament, with whatever limitations in practice, was the central legislature, and the Privy Council exercised the jurisdiction of supreme judicial tribunal.
The authority of the king was employed with a varying degree of directness in different colonies. His prerogatives were, for the most part, put in operation by the local governors. In crown colonies, where the royal contact was closest, civil government largely depended upon special instructions and commissions issued from time to time directly from the throne. Colonial legislation was subject to the sovereign's approval or veto. All charters were granted by him, and his powers were exercised on occasion in other acts affecting the fundamental status of colonial administration.[36]
Parliament made laws for the supreme government of the colonies. While some confusion of ideas existed as to the proper exercise of this power, the power was always claimed unlimitedly by Parliament itself, and its operation was willingly conceded by the colonists in cases affecting foreign, commercial, and Indian affairs, and what might be called imperial as distinct from internal interests. The legislation of the colonial assemblies was, indeed, occasionally annulled by a board or council in England, as well as by Parliament. And denial of all parliamentary authority, though made in some of the colonies after the passage of the Stamp Act of 1765, was not general until the verge of actual separation from the mother-country.
The jurisdiction of the Privy Council as a supreme court for colonial affairs, in appeals from decisions of the colonial judiciary, and in other matters, was constantly exercised. And it was fully recognized by all the colonies at the period of the American Revolution, and resorted to when occasion required.
Yet notwithstanding mutual ties of blood and institutions, it is easy to perceive, looking back from our own time, that there existed fair opportunity for friction, and even for eventual separation in the somewhat complex and vaguely defined relations, and in the gradually diverging interests of Great Britain and her distant children. Among causes of uneasiness is often mentioned the development of a democratic tendency among the colonists, manifesting itself in varied forms, but chiefly in contests between the legislatures and the royal governors. This tendency, which eventually became characteristic, is, perhaps, not to be wondered at, if it be remembered that the colonists were commoners, without the restraining presence of a resident nobility, and that the colonial period was a period which witnessed the overthrow of Charles I. by his House of Commons, the rise of the English Commonwealth, and the Revolution of 1688, as contemporaneous movements in the mother-country, ending in the modern control of the crown by the popular branch of Parliament. But the truth is, that as the colonists grew in numbers and material wealth, and began to realize their own power, interference across seas came to be less and less easy to maintain on one side, or to endure on the other. And with the fall of Canada and the consequent overthrow of a threatening French power in the north and west, America ceased to feel the need of dependence upon the empire.
Yet although a sense of the inevitable approach of American independence came to find expression even among keen foreign observers on the continent of Europe,[37] the colonists themselves, up to the very eve of war, were averse to the thought of actual separation. The records of the time are filled with evidences of the powerful hold which the mother-country had upon their hearts. They loved Great Britain as their old home.[38] "They regarded," remarks Frothingham, "their connection with the mother-country to be a fountain of good. They looked upon the English Constitution as their own."[39] Even in the midst of the final contest, so great a leader as the elder Adams could write: "Would to God, all, even our enemies, knew the warm attachment we have for Great Britain."[40] And John Adams,[41] referring to "the habitual affection for England," during colonial times, was able to declare truthfully that "no affection could be more sincere."[42]
When the contest came, it came as a straggle over ancient English constitutional principles. The drift had long been toward an opening of the whole question of mutual civil relations, when George III: forced the question to an issue by attempted taxation through act of Parliament. England was proud of America as her chief imperial possession; but she had not yet learned the secret of imperial administration, and her old customs and legal theories, lingering from days when she had been but an island kingdom, were inapplicable to the new conditions. By those theories, the colonists, being British subjects, were as completely subordinated to Parliament as were all other British subjects. True, they had long been permitted to regulate their internal affairs, and above all, to vote their own taxes; but Parliament had on sundry occasions asserted its right of taxation, and held such right to be a necessary part of its own position as supreme legislature. As the legal theory of Parliament had grown up under purely national conditions, this parliamentary claim was theoretically correct. But it did not accord with the new imperial facts. On the other hand, the colonists held that the imperial facts ought to be conceded. Though British subjects, they were separated by wide seas from the older land, and were unable to take active part in its political life. A fundamental principle of the liberties of Englishmen associated, as the colonists understood it, the right of representation with the right of taxation. The principle had been enunciated in their colonial legislation almost from the beginning of colonial settlement, and had been steadily acted upon by them. They were without representatives in Parliament, and therefore Parliament could not, in their view, rightfully tax them. They were unwilling to pay the parliamentary tax, though, through their own representatives in the colonial legislatures, they were ready to vote more liberal supplies than those proposed by Parliament. Their plea was conservative, for it desired that the then existing state of affairs should be continued. The war that ensued was fought on the part of the colonists in defence of what they thus held to be their rights as men of the English blood; and American independence resulted from this constitutional struggle.
[1] Aristotle says: "It is evident that a state is one of the works of nature, and that man is naturally a political animal, and that whosoever is naturally and not accidentally unfit for society must be either inferior or superior to man." — Welford's translation of Aristotle's Politics and Economics, 6. Mr. Hannis Taylor gives modern expression to this old thought: "The cityless man (apoliV) — the natural man of Hobbes and Rousseau — must be more or less than man, — either superhuman or a monster." — Origin and Growth of the English Constitution, 5. "He is the unit," Pollock remarks, "out of whom, if there be only enough of them, theorists of the Social Contract school undertake to build up the state. This is an enterprise at which Aristotle would have stared and gasped." — History of the Science of Politics, 9. "The influence of this contract theory on political thought lingers even to this day, though in a constantly diminishing degree. At present it may be considered as having generally given place to the view first advanced by Aristotle." — Crane and Moses, Politics, 68.
[2] "Intelligence," substantially says Professor Joseph Le Conte, "works by experience, and is wholly dependent on individual experience for the wisdom of its actions; while instinct, on the other hand, is wholly independent of individual experience. If we regard instinct in the light of intelligence, then it is not individual intelligence, but cosmic intelligence, or the laws of nature working through inherited brain structure to produce wise results. Intelligence belongs to the individual, and is therefore variable, that is, different in different individuals, and also improvable in the life of the individual by experience. Instinct belongs to the species, and is therefore the same in all individuals, and unimprovable with age and experience.... In a word, intelligent conduct is self-determined and becomes wise by individual experience. Instinctive conduct is predetermined in wisdom by brain structure. The former is free; the latter is, to a large extent, automatic." — Popular Science Monthly, October, 1875. "As to the origin of instinct, it can hardly be said that any theory has as yet gained universal assent, but no hypothesis appears more worthy of acceptance than that which regards it as habit grown to be hereditary. An act frequently performed in the consciousness of a specific purpose may continue to be performed, through the determinative force of structure, after the consciousness of the purpose of the act has been lost. When this peculiarity of structure or the mental bias caused by the frequent and continued exercise of the mind in a given direction has become hereditary, the habit has grown into an instinct." — Crane and Moses, Politics, 69.
[3] Ibid. 70.
[4] Mr. Douglas Campbell (Puritan in Holland, England, and America), in his effort to make out a Dutch origin for American institutions, has fallen into the mistake of underestimating English influence. One of his main contentions is that the American people are not of English race; and he bases this assumption upon the fact that there were resident along with the English in the colonies Welshmen, Scotchmen, Irishmen, Scotch-Irishmen, Dutch, Germans, Frenchmen and Swedes. But, for the purposes of the present inquiry, it is sufficient to remember: —
1. The above statement is strictly accurate: "The great majority" of the settlers were of "the English branch of the Teutonic race." Mr. Campbell admits that the English majority was overwhelming.
2. The Scotch, Welsh, Irish, and Scotch-Irish had lived under British institutions before journeying to America. They had passed through an English constitutional experience as really as had their English fellow-countrymen.
3. Those of other races resident in the colonies had personal contact for several generations with English government in its imperial and colonial forms.
4. All colonists alike were British subjects; and English administration dominated all, as completely as did the English language.
5. The Constitution of the United States as a legal document is traceable not to race influences in any vague sense, but to race influences as worked out in the form of laws. And those laws were English.
In simple truth, the presence in America, during colonial days, of the representatives of other races than the English has left scarcely a trace in the national Constitution. This is so, notwithstanding the fact that these races have contributed in several ways to the formation of the national spirit of the Americans. Thus an acknowledgment is due to the Dutch — themselves Teutonic — who did much to promote the love of freedom. And Mr. Campbell, in his second volume, shows that the influence of the Scotch-Irish was in the same direction. The free school, the use of a written ballot, certain features of the land laws and of the township system, which Mr. Campbell mentions, are doubtless traceable, in part at least, to Dutch sources; and though not included in the Constitution, have exercised an influence in moulding the American nation. It would be easy to exaggerate this influence, especially if English government in America, which forms the great fact of early American history, should be left out of the account. In opening for investigation a most interesting question — the question of Dutch influences — Mr. Campbell has seemingly erred on this side. His very able treatment of his theme renders this bias the more regrettable.
[5] "The people were proud to call themselves 'Englishmen away from home,' and they were prompt to claim all the rights and liberties of English subjects." — Landon, Constitutional History and Government of the United States, 20. Referring to the persistence of the English traits in the race, even among Americans of our own day, Professor Hosmer says: "Can it be said that the stock is still fundamentally English, however large may have been the inpouring into its veins of foreign blood? When among our kin beyond sea it was urged, not long since, that in the people of England the Anglo-Saxon had been superseded; that Celt, Frank, Scandinavian, Hollander, and Huguenot — the multitude of invaders and immigrants through a thousand years — had reduced the primitive element to insignificance, it was well replied by Mr. Freeman: 'In a nation there commonly is a certain element which is more than an element, something which is its real kernel, its real essence; something which attracts and absorbs all other elements, so that other elements are not co-ordinate elements, but mere infusions into a whole which is already in being.... If, after adopting so many ... we remain Englishmen, none the less surely a new witness is brought to the strength of the English life within us, — a life which can thus do the work of the alchemist, and change every foreign element into its own English being.' [Four Oxford Lectures, 1887, p. 80.] A similar statement might be made as regards America.... The stranger, indeed, has been with us from the beginning: Frenchman and Spaniard preceded us; Celt, Swede, Dutchman, and German came with us in the earliest ships. The overflow of Europe ... has poured in upon us in an inundation; yet the English stock remains, — the element which is more than an element, the real kernel, the real essence; something that attracts and absorbs all other elements, so that other elements are not co-ordinate, but mere infusions into a whole which is already in being." — Hosmer, Anglo-Saxon Freedom, 312, 313. He gives evidence of this, and quotes the testimony of the late Professor Richard A. Proctor: "I have had better opportunities than most men of comparing the two nations; and I profess I find the difference between them even less than I should have expected from the difference in the conditions under which the two nations have subsisted during the last few generations." Sir Edwin Arnold, commenting upon the same fact, says of America: "I have found myself everywhere in a transatlantic England. I do not say that in any foolish idea that to be 'quite English' is a point of perfection.... Half an American as I am, by marriage and by sympathies, I must confess that it has been wholly delightful to observe this unmistakable and minute identification of the races." Mr. Bryce points out the process of foreign absorption, by which, though immigrants usually retain their foreign traits in the first generation, the rising generation rapidly loses its old nationality. "The younger sort," he says truthfully, "when they have learned English; when, working among Americans, they have imbibed the sentiments and assimilated the ideas of the country, are henceforth scarcely to be distinguished from the native population. They are more American than the Americans in their desire to put on the character of their new country." — American Commonwealth, II. 328. Professor Hosmer comments: "The Anglo-Saxon stock has been made rich and strong by a score of crossings with the most vigorous and intellectual of modern races; but it remains, nevertheless, Anglo-Saxon. In 1886, at the great Colonial Exhibition in London, what especially struck the American visitor was the identity with his own civilization of the civilization represented in the products set forth; and the similarity to himself of the English-speaking men who had gathered there, though they came from the farthest corners of the world. Such clothing we wear ... with such appliances we, too, mine, work the soil, sail the sea, ... and teach the young idea how to shoot; in the paintings of towns at the antipodes, which sometimes were hung on the walls, the streets looked like those of any American town; the frontiersman's hut in the remote clearing, as the model showed it, was a reproduction of the log cabin of Dakota or Kansas. If the American fell into talk with a group pausing in an aisle before some attractive object, though one might be from New Zealand, another from the Faulkland Islands, a third from Natal, and a fourth from Athabasca, a close spiritual and intellectual relationship was at once developed. All had read, to a large extent, the same books, been trained in the same religious faith, disciplined and made strongly virile by that priceless polity, so free and yet so carefully ordered, which had been inherited from Anglo-Saxon ancestors, or thoroughly assimilated through contact with Englishmen. 'Should you know,' said the American, 'that my home is in the valley of the Mississippi?' 'By no means,' was the reply; 'you seem to me like my neighbours in Aukland.' And yet it was two hundred and fifty years since the ancestor of the American had left his home in Kent to go to the New World, and the New Zealander had never left his island until he took ship a month before for London. 'You seem like my neighbours,' also could say the man from Cape Town, from Fort Garry, from Puget Sound, from the gold fields of Ballarat. 'You might all come from this or that English county,' said a Londoner, who had joined the group; 'you are no more diverse from one another, or from us, than the man of Yorkshire from the man of Dorset; the Cumberland shepherd from the Leicestershire farmer.... Substantially, they were identical with one another — identical too with the American — all with blood enriched by infusion,... but not changed in frame or speech or soul from the champions who, under Alfred, or Earl Simon, or Cromwell, or Washington, or Lincoln, fought to sustain Anglo-Saxon freedom." — Anglo-Saxon Freedom, 318-320. So speaks a writer of our time, of the race as it is to-day in America, notwithstanding the changes of two centuries, and those other changes wrought by modern immigration. The race during the American colonial period — which is the sole point that the present volume has to consider — was undeniably English.
[6] Professor William C. Morey (Annals of American Academy of Political and Social Science, April, 1891) lays emphasis upon the fact that the charters granted by the sovereigns for the colonies were really charters of commercial corporations. The further fact that the governmental provisions of these charters closely resembled the outlines of the English government, greatly aided the colonists in establishing English institutions. The colonists, however, did not confine themselves to charter provisions. What these lacked they supplemented by a direct copying from British originals, until there resulted, by action of the people themselves, a close assimilation of each colonial government to the model of the government of the mother-land. "The constitutional development of the American colonies began very early. The colonial system hampered them but slightly, and that chiefly in regard to trade. Assemblies were not instituted, but grew up of themselves, because it was of the nature of Englishmen to assemble." — Seeley, Expansion of England, 67. As Hutchinson expresses it, "This year (1619) a House of Burgesses broke out in Virginia." See Robinson, Publications of the American Academy of Political and Social Science, No. 9, p. 207.
[7] This charter is given in Poore's Charters and Constitutions, Part II., p. 1888. Also it may be found in Stith, and in Hazard's Historical Collections.
[8] Commentaries on the Constitution of the United States, I. 21, §46.
[9] Robertson's America, B. 9. "The first representative legislative assembly ever held in America was convened in the chancel of the [Episcopal] church at James City or Jamestown, and was composed of twenty-two burgesses from the eleven several towns, plantations, and hundreds styled Burroughs." — Narrative and Critical History, III. 143. In 1874 the manuscript account of the transactions of this assembly, from the State Paper Office, London, was published as a State Senate Document; Colonial Records of Virginia. In 1857 it was published in the Collections of the New York Historical Society.
[10] Commentaries on the Constitution of the United States, I. 21, §46.
[11] Referring to the Jamestown assembly of 1619, Professor Thorp remarks: "Two years later, on the 24th of July, the council of the company in England approved the course of the assembly by passing an ordinance establishing a written constitution for Virginia.
This earliest written constitution for an American commonwealth was modelled after the unwritten constitution of England, and it is the historical foundation of all later constitutions of government in this country." — Story of the Constitution, 26. See Henning, Stat., 111; Stith's Virginia, App. No. 4, 321. The boasted Connecticut constitution was of later date.
[12] Poore's Charters, I. 932; Massachusetts Records, I. 3.
[13] "What was originally organized as an English trading company thus became an American colony, with its constitution and government unchanged. The charter of 1628 remained the colonial constitution of Massachusetts until 1691, when it was superseded by a new royal charter, which, however, confirmed the previous frame of government in its essential points, save that the governor was now appointed by the crown. It should be noticed that by this charter of 1691 the colony of pilgrims at Plymouth, Massachusetts, who had developed an independent government of their own, without any royal sanction, was united to Massachusetts Bay, and became incorporated into the same political organization." — Annals of American Academy of Political and Social Science, April, 1891, p. 550.
[14] Palfrey, History of New England, II. 174; Hutchinson, History, I. 145, 146.
[15] New Hampshire Provincial Laws, ed. 1771, pp. 1, 3.
[16] "In 1639 a written instrument was signed by which the three towns of Windsor, Wethersfield, and Hartford became associated as one body politic. Citizens of Connecticut, with very just pride point to this instrument as the first American written constitution, for the compact on the Mayflower was merely an agreement to found a government, leaving its character to be determined in the future. But in view of the fact, that the Netherland republic had for about half a century been living under the 'Union of Utrecht,' which was a written constitution pure and simple, writers are hardly warranted in calling this the first instrument of the kind known to history." — Campbell, Puritan in Holland, England, and America, II. 417. "This enactment of the Connecticut colonists has been extolled as 'the first example in history of a written constitution, — an organic law constituting a government and defining its powers.'" — Bacon, Constitutional History of Connecticut, 5, 6. Mr. Bryce calls it the oldest truly political constitution in America. — American Commonwealth, I. 414, note. "It was, no doubt, the first written constitution which was enacted by the independent act of the people. The form of government, however, which it constituted was simply a reproduction of that of the Massachusetts Bay Company, sanctioned by the charter of 1628. Whether the independent authority exercised by the Connecticut colonists was alone sufficient to constitute a legal government was, to them at least, a matter of question. Aware of the doubtful nature of their title to exercise sovereignty, the colonists appealed to the king, and in 1662 received a royal charter, which erected the colony into a corporate company, with powers and privileges similar to those already given to the Massachusetts Bay Company. The phraseology of this charter throughout is almost precisely the same as that employed in the Massachusetts charter of 1628." — Morey, Annals of American Academy of Political and Social Science, April, 1891, p. 551. As a matter of fact, the royal charters were the first American written constitutions.
[17] Rhode Island Colony Laws (1744), 24.
[18] "The Province was made a county palatine, and the Proprietary was invested with all the royal rights, privileges, and prerogatives which had ever been enjoyed by any Bishop of Durham within his county palatine." — Narrative and Critical History, III. 520.
[19] "The details of political organization were in a great measure confided to the discretion of the proprietor, whose original conception of a constitution consisted of a governor, council, and primary assembly — a veritable old English gemote — in which every freeman had the right to represent himself and to vote. Gradually, as the primary plan grew inconvenient, it was supplanted by a representative system, and in 1647 the governing body was divided into two chambers: the lower consisting of an elective house of burgesses; the upper, of the councillors and of those specially summoned by the proprietor." — Taylor, Origin and Growth of the English Constitution, 24.
[20] Bacon, Laws of Maryland, c. 2, 1638; c. 1, 1650. Assembly Proceedings of Maryland, 1637 to 1658, p. 129.
[21] "The Dutch did not trouble themselves much about forms of government." — Landon, Constitutional History of the United States, 23.
[22] In consequence of this a large proportion of the Dutch inhabitants left the colony and returned to Europe.
Since Mr. Douglas Campbell made his assertion of Dutch as against English influence upon the institutions of the United States, it has become customary in New York and some other localities to repeat and amplify his allegations. When this is done by Americans of Dutch ancestry, no one need wonder; but when the utterances proceed from other sources, and are marked by a rhetorical rather than historical tone, they are to be regarded differently. The lines of argument used by such writers commonly repeat themselves. (l) It is claimed that America was influenced by Holland, because Holland exerted an influence over England. But it is evident that this particular line of influence, whatever it may have been, reached America through England. Little is said by these one-sided writers of any influence exerted by England over Holland. (2) It is claimed that because the Pilgrims and some of the early Puritans passed through Holland on their way to America, they were controllingly influenced by the Dutch. But there is practically an ignoring of the fact that these men had spent the greater part of their lives in England, and were by birth and blood Englishmen. (3) It is claimed that by means of commercial transactions, Holland and New Amsterdam influenced the social life of the colonists. But the long and bitter hostility of the colonists toward the Dutch is unmentioned. And the fact is left out of sight, that the main contact and commerce of the colonies down to the very last, was with England. It is not worth while to follow these writers further in such irresponsible toying with sober history.
[23] This assembly "was formally called by the governor, as the duke's representative, in answer to a popular petition for a government like that of the New England colonies. These enactments, under the name of a 'charter of liberty,' vested the government in the hands of a governor, council, and representative assembly, with powers similar to those possessed by the corresponding branches in New England; and these enactments were approved, not only by the governor and the duke, but also by the king" — Annals of American Academy of Political and Social Science, April, 1891, p. 553.
[24] As New York was originally settled by the Dutch, the complete supremacy of English constitutional law and usage is the more remarkable. Some Dutch usages linger (see Campbell, Puritan in Holland, England, and America); but their number seems to be relatively small, — so small that Dutch influence was until recently almost forgotten. When the first charter was granted to the Duke of York, "no laws contrary to those of England were allowed." — Story, Commentaries on the Constitution, I. 75, § 112. The supremacy of the Englishmen, with their characteristic claims of liberty, is evidenced by the exclamation of the governor to the legislature in 1697: "There are none of you but what are big with the privileges of Englishmen and Magna Charta." — Landon, Constitutional History of the United States, 24. Among the earliest acts was one declaring the right to enjoy the liberties and privileges of Englishmen by Magna Charta. — Smith, New York, 127, 75, 76; Acts of 1691. Story remarks: "In examining the subsequent legislation of the province, there do not appear to be any very striking deviations from the laws of England; and the common law, beyond all question, was the basis of its jurisprudence.... Perhaps New York was more close in adoption of the policy and legislation of the parent country before the Revolution, than any other colony." — Commentaries on the Constitution, I. 77, 78, § 114. The facts are well summarized by Crane and Moses: "New York we find owed its first settlement, like many other colonies, to a speculative corporation. The Dutch West India Company, under its charter from the government of the Netherlands, undertook to colonize the new territory in the neighbourhood of the Hudson River. It is not necessary to our purpose to examine very closely the history of this commercial venture, because the Dutch regime made little or no impression politically, however great its impression socially, upon the future State.... The elements of local self-government then existing in Holland were not transplanted. It is from the capture by the English, in 1664, that the political life of New York dates." — Politics, 117.
[25] "In all these changes of authority, the form of government established ... retained the general form which already prevailed in New England, which type was more consciously followed than that of the south, although there was no essential difference between the political forms of the two sections." — Annals of American Academy, April, 1891, p. 554.
[26] It has been remarked, as a strange omission in this charter, that no provision exists to the effect that the inhabitants and their children shall be deemed British subjects, and entitled to all the liberties and immunities thereof, such a clause being found in every other charter. Chalmers has observed that the clause was unnecessary, as allegiance to the crown was reserved; and the common law thence inferred that all the inhabitants were subjects, and of course were entitled to all the privileges of Englishmen. See Annals, 639, 658.
[27] See Campbell, Puritan in Holland, England, and America. He claims that a few Dutch elements crept into the institutions of Pennsylvania, and partly accounts for their existence by pointing out that the mother of William Penn was Dutch. However this may be, Penn's father and family were English, and he always accounted himself an Englishman. That, with local modifications, the institutions of Pennsylvania were essentially English, cannot be historically questioned; and the presence of an occasional feature of possibly Dutch origin only serves to accentuate the predominance of the English features that make up the whole body of the laws.
[28] "The proprietors attempted to create a political fabric through the aid of Locke — a philosopher of the Social Contract school — whose Fundamental Constitutions quickly illustrated how vain it was to attempt to govern Englishmen by a paper constitution whose complicated and artificial details offended the national instinct by departing from the primitive tradition." — Taylor, Origin and Growth of the English Constitution, 24. These constitutions may be seen in their first state in Carroll, II. 361; and the modifications are given under the years of issue in the Shaftesbury Papers. See, also, Carolina Charters, London, 33, etc. A recent biographer of Locke (H. R. Bourne) notes that the plan was initiated by Shaftesbury, and modified by other proprietors; and although Locke had a large share in the work, not all the features were such as he himself approved.
[29] Crane and Moses, Politics, 123.
[30] "In respect to its ante-revolutionary jurisprudence, a few remarks may suffice. The British common and statute law lay at the foundation. The same general system prevailed as in the Carolinas, from whence it sprung." — Story, Commentaries on the Constitution of the United States, I. 99, § 145.
[31] The scope of the present volume does not admit of a discussion of the interesting questions associated with the history of American townships and local government. It is just possible those questions have been pressed too far. But the student of ancient institutions must recognize their great importance. Nor can he fail to appreciate the force with which evidence drawn from such sources confirms the truth of the development of American governments from the historic past. See Scott, Development of Constitutional Liberty, 174; Fiske, American Political Ideas, 17-56; Fiske, "Town Meeting," Harper's Magazine, January, 1885; Professor Adams, "Germanic Origin of New England Towns," in Johns Hopkins University Studies, 1st Series, II.; E. Channing, "Town and County Government," Ibid., 2d Series, X.; Doyle, English Colonies in America, Puritan, etc., II. 7-26; Professor Andrews, "Origin of Conn. Towns," Annals of American Academy, Vol. I.; Hildreth, History, I. chap. vii.; De Tocqueville, Bower's Translation, Democracy in America, I. chap. v.; Parker, Origin, Organization and Influence of Towns of New England; Massachusetts Historical Society, 1866-67, etc. See also Statutes of New England States, Law Reports, etc.
[32] Bryce, American Commonwealth, I. 458.
[33] Constitutional History of England, II. 511.
[34] Green, History, V. 217, § 1440.
[35] The analogy is not close, but it is real as far as it goes.
[36] "The fact that the soil upon which the English colonies in America were planted, came to them through royal grants, the fact that every form of political organization established thereon rested upon royal charters, were the foundation stones upon which the colonists gradually built up, in the light of their actual experience, their theory of the political relations which bound them to the mother-country. Their rights as Englishmen endowed with 'all liberties, franchises, and immunities of free denizens and natural subjects' flowed from their charters, which, as between themselves and the crown, were irrevocable though not non-forfeitable contracts. The earliest form of direct legislative control to which any of the colonies were subjected in the form of ordinances or instructions for their government emanated, not from the law-making power of the king in Parliament, but from the ordaining power of the king in council. And at a later day, when the colonial assemblies began the work of legislation on their own account, the validity of their enactments depended, not upon the approval of the English Parliament, but upon that of the royal governor, who stood as the ever-present representative of his royal master. With the founding of the colonies, and with the organization of their political systems, the crown had everything to do." — Taylor, Origin and Growth of the English Constitution, 25, 26.
[37] "Turgot and Choiseul had very early recognized that the separation of the colonies from the mother-country was only a question of time." — Von Holst, Constitutional History of the United States, I. I. See also Bancroft, History of the United States, IV. 399. Durand wrote in August, 1766, "They are too rich to remain in obedience." See also, Frothingham, Rise of the Republic of the United States.
[38] "This feeling was not an easy one to eradicate, for it was based in blood, training, and sympathies of every nature. It would not have been easy to distinguish the American from the Englishman; it would, indeed, have been less easy than now, when the full effects of a great stream of immigration have begun to appear. American portraits of the time show typical English faces. Whenever life was relieved of the privations involved in colonial struggle, the person at once reverted to the type which was then the result of corresponding conditions in England. The traditions of American officers were English; their methods were English; even the attitude which they took towards the private soldiers of their armies was that which was characteristic of the English officer of the time. In the south, the men who led and formed public opinion had almost all been trained in England, and were ingrained with English sympathies and even prejudices. In the north, the acute general intellect had long ago settled upon the 'common rights of Englishmen' as the bulwark behind which they could best resist any attempt on their liberties. The pride of the colonists in their position as Englishmen found a medium of expression in enthusiasm for 'the young king'; and it would be hard to imagine a more loyal appendage of the crown than its English colonies in North America in 1760." — Professor Johnson, of Princeton, in Encyclopedia Britannica, 9th ed., XXIII. 736.
[39] Frothingham, Rise of the Republic of the United States, 123. The following extract from the American press of the time fairly expresses the popular feeling: "Our constitution is English, which is another name for free and happy, and is without doubt the perfectest model of civil government that has ever been in the world." — Independent Advertiser, May 29, 1749.
[40] Letter to Charles Thompson, 1774, Life of Warren, 232.
[41] Works, X. 282.
[42] Referring to the period preceding the Revolution, Frothingham says: "A town under the lead of zealous Whigs voted that the union between the colonies and Great Britain was not worth a rush; occasionally a writer urged in an essay in the newspapers that the only way to place American liberty on a firm foundation was to form an independent nation; but these were the views of extremists, and were generally disavowed. The great body of the Whigs united with the Tories in prizing this union as of incalculable value. They regarded themselves as fellow-subjects with Britons. They looked on the people of both countries as being one in the essential elements of nationality, political ideas, language, and the Christian religion; and one in the love of a noble literature and precious historic memories. They kindled at the sight of the old flag and at thoughts of the mother-land —
"'A land of just and old renown.
Where freedom broadens slowly down
From precedent to precedent; '
and it was the prevailing sentiment that a recognition of coequal rights would enable the people of both countries to live long under the same flag. The popular leaders averred that they did not deny the sovereignty, but opposed the administration. They did not ascribe the obnoxious measures to the king whom they revered, or to the constitution which they venerated, or to the nation which they loved, but to despotic ministers and corrupt majorities." — Rise of the Republic of the United States, 294, 295. In another place he well remarks: "I cannot but think that much error has crept into American history by not keeping in view the difference between opposition to the measures of an administration and resistance to the supreme power of the empire, or to the sovereignty." And looking back over the period of colonial history, adds, "The immigrants ... bore toward [England] a noble affection." — Ibid. 67.
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