Civil Government in the United States Considered with Some Reference to Its Origins Part 18

Between the years 1614 and 1621 the Dutch founded their colony of New Netherland upon the territory included between the Hudson and Delaware rivers, or, as they quite naturally called them, the North and South rivers. They pushed their outposts up the Hudson as far as the site of Albany, thus intruding far into the northern zone. In 1638 Sweden planted a small colony upon the west side of Delaware Bay, but in 1655 it was surrendered to the Dutch. Then in 1664 the English took New Netherland from the Dutch, and Charles II. granted the province to his brother, the Duke of York. The duke proceeded to grant part of it to his friends, Berkeley and Carteret, and thus marked off the new colony of New Jersey. In 1681 the region west of New Jersey was granted to William Penn, and in the following year Penn bought from the Duke of York the small piece of territory upon which the Swedes had planted their colony. Delaware thus became an appendage to Penn's greater colony, but was never merged in it. Thus five of the original thirteen states--Maryland, New York, New Jersey, Pennsylvania, and Delaware--were const.i.tuted in the middle zone.

As we have already observed, the westward movement of population in the United States has largely followed the parallels of lat.i.tude, and thus the characteristics of these three original strips or zones have, with more or less modification, extended westward. The men of New England, with their Portland and Salem reproduced more than 3000 miles distant in the state of Oregon, and within 100 miles of the Pacific Ocean, may be said in a certain sense to have realized literally the substance of King James's grant to the Plymouth Company. It will be noticed that the kinds of local government described in our earlier chapters are characteristic respectively of the three original zones: the towns.h.i.+p system being exemplified chiefly in the northern zone, the county system in the southern zone, and the mixed towns.h.i.+p-county system in the central zone.

[Sidenote: House of Burgesses in Virginia.]

The London and Plymouth companies did not perish until after state governments had been organized in the colonies already founded upon their territories. In 1619 the colonists of Virginia, with the aid of the more liberal spirits in the London Company, secured for themselves a representative government; to the governor and his council, appointed in England, there was added a general a.s.sembly composed of two burgesses from each "plantation," [2] elected by the inhabitants.

This a.s.sembly, the first legislative body that ever sat in America, met on the 30th of July, 1619, in the choir of the rude church at Jamestown. The dignity of the burgesses was preserved, as in the House of Commons, by sitting with their hats on; and after offering prayer, and taking the oath of allegiance and supremacy, they proceeded to enact a number of laws relating to public wors.h.i.+p, to agriculture, and to intercourse with the Indians. Curiously enough, so confident was the belief of the settlers that they were founding towns, that they called their representatives "burgesses," and down to 1776 the a.s.sembly continued to be known as the House of "Burgesses," although towns refused to grow in Virginia, and soon after counties were organized in 1634 the burgesses sat for counties. Such were the beginnings of representative government in Virginia.

[Footnote 2: The word "plantation" is here used, not in its later and ordinary sense, as the estate belonging to an individual planter, but in an earlier sense. In this early usage it was equivalent to "settlement." It was used in New England as well as in Virginia; thus Salem was spoken of by the court of a.s.sistants in 1629 as "New England's Plantation."]

[Sidenote: Company of Ma.s.sachusetts Bay.]

The government of Ma.s.sachusetts is descended from the Dorchester Company formed in England in 1623, for the ostensible purpose of trading in furs and timber and catching fish on the sh.o.r.es of Ma.s.sachusetts Bay. After a disastrous beginning this company was dissolved, but only to be immediately reorganized on a greater scale.

In 1628 a grant of the land between the Charles and Merrimack rivers was obtained from the Plymouth Company; and in 1629 a charter was obtained from Charles I. So many men from the east of England had joined in the enterprise that it could no longer be fitly called a Dorchester Company. The new name was significantly taken from the New World. The charter created a corporation under the style of the Governor and Company of Ma.s.sachusetts Bay in New England. The freemen of the Company were to hold a meeting four times a year; and they were empowered to choose a governor, a deputy governor, and a council of eighteen a.s.sistants, who were to hold their meetings each month. They could administer oaths of supremacy and allegiance, raise troops for the defence of their possessions, admit new a.s.sociates into the Company, and make regulations for the management of their business, with the vague and weak proviso that in order to be valid their enactment must in no wise contravene the laws of England. Nothing was said as to the place where the Company should hold its meetings, and accordingly after a few months the Company transferred itself and its charter to New England, in order that it might carry out its intentions with as little interference as possible on the part of the crown.

Whether this transfer of the charter was legally justifiable or not is a question which has been much debated, but with which we need not here vex ourselves. The lawyers of the Company were shrewd enough to know that a loosely-drawn instrument may be made to admit of great liberty of action. Under the guise of a mere trading corporation the Puritan leaders deliberately intended to found a civil commonwealth in accordance with their own theories of government.

[Sidenote: Government of Ma.s.sachusetts; the General Court]

After their arrival in Ma.s.sachusetts, their numbers increased so rapidly that it became impossible to have a primary a.s.sembly of all the freemen, and so a representative a.s.sembly was devised after the model of the Old English county court. The representatives sat for towns.h.i.+ps, and were called deputies. At first they sat in the same chamber with the a.s.sistants, but in 1644 the legislative body was divided into two chambers, the deputies forming the lower house, while the upper was composed of the a.s.sistants, who were sometimes called magistrates. In elections the candidates for the upper house were put in nomination by the General Court and voted on by the freemen. In general the a.s.sistants represented the common or central power of the colony, while the deputies represented the interests of popular self-government. The former was comparatively an aristocratic and the latter a democratic body, and there were frequent disputes between the two.

It is worthy of note that the governing body thus const.i.tuted was at once a legislative and a judicial body, like the English county court which served as its model. Inferior courts were organized at an early date in Ma.s.sachusetts, but the highest judicial tribunal was the legislature, which was known as the General Court. It still bears this name to-day, though it long ago ceased to exercise judicial functions.

[Sidenote: New charter of Ma.s.sachusetts]

Now as the freemen of Ma.s.sachusetts directly chose their governor and deputy-governor, as well as their chamber of deputies, and also took part in choosing their council of a.s.sistants, their government was virtually that of an independent republic. The crown could interpose no effective check upon its proceedings except by threatening to annul its charter and send over a viceroy who might be backed up, if need be, by military force. Such threats were sometimes openly made, but oftener hinted at. They served to make the Ma.s.sachusetts government somewhat wary and circ.u.mspect, but they did not prevent it from pursuing a very independent policy in many respects, as when, for example, it persisted in allowing none but members of the Congregational church to vote. This measure, by which it was intended to preserve the Puritan policy unchanged, was extremely distasteful to the British government. At length in 1684 the Ma.s.sachusetts charter was annulled, an attempt was made to suppress town-meetings, and the colony was placed under a military viceroy, Sir Edmund Andros. After a brief period of despotic rule, the Revolution in England worked a change. In 1692 Ma.s.sachusetts received a new charter, quite different from the old one. The people were allowed to elect representatives to the General Court, as before, but the governor and lieutenant-governor were appointed by the crown, and all acts of the legislature were to be sent to England for royal approval. The general government of Ma.s.sachusetts was thus, except for its possession of a charter, made similar to that of Virginia.

[Sidenote: Connecticut and Rhode Island]

The governments of Connecticut and Rhode Island were constructed upon the same general plan as the first government of Ma.s.sachusetts.

Governors councils, and a.s.semblies were elected by the people. These governments were made by the settlers themselves, after they had come out from Ma.s.sachusetts; and through a very singular combination of circ.u.mstances[3] they were confirmed by charters granted by Charles II in 1662, soon after his return from exile. So thoroughly republican were these governments that they remained without change until 1818 in Connecticut and until 1842 in Rhode Island.

[Footnote 3: See my _Beginnings of New England_, pp. 192-196.]

We thus observe two kinds of state government in the American colonies. In both kinds the people choose a representative legislative a.s.sembly; but in the one kind they also choose their governor, while in the other kind the governor is appointed by the crown. We have now to observe a third kind.

[Sidenote: Counties palatine in England]

[Sidenote: Charter of Maryland]

After the downfall of the two great companies founded in 1606, the crown had a way of handing over to its friends extensive tracts of land in America. In 1632 a charter granted by Charles I to Cecilius Calvert, Lord Baltimore, founded the palatinate colony of Maryland. To understand the nature of this charter, we must observe that among the counties of England there were three whose rulers from an early time were allowed special privileges. Because Ches.h.i.+re and Durham bordered upon the hostile countries, Wales and Scotland, and needed to be ever on the alert, their rulers, the earls of Chester and the bishops of Durham, were clothed with almost royal powers of command, and similar powers were afterwards granted through favouritism to the dukes of Lancaster. The three counties were called counties palatine (i.e.

"palace counties"). Before 1600 the earldom of Chester and the duchy of Lancaster had been absorbed by the crown, but the bishopric of Durham remained the type of an almost independent state, and the colony palatine of Maryland was modelled after it. The charter of Maryland conferred upon Lord Baltimore the most extensive privileges ever bestowed by the British crown upon any subject. He was made absolute lord of the land and water within his boundaries, could erect towns, cities, and ports, make war or peace, call the whole fighting population to arms and declare martial law, levy tolls and duties, establish courts of justice, appoint judges, magistrates, and other civil officers, execute the laws, and pardon offenders. He could erect manors, with courts-baron and courts-leet, and confer t.i.tles and dignities, so that they differed from those of England. He could make laws with the a.s.sent of the freemen of the province, and, in cases of emergency, ordinances not impairing life, limb, or property, without their a.s.sent. He could found churches and chapels, have them consecrated according to the ecclesiastical laws of England, and appoint the inc.u.mbents.[4] For his territory and these royal powers Lord Baltimore was to send over to the palace at Windsor a tribute of two Indian arrows yearly, and to reserve for the king one fifth part of such gold and silver as he might happen to get by mining. "The king furthermore bound himself and his successors to lay no taxes, customs, subsidies, or contributions whatever upon the people of the province, and in case of any such demand being made, the charter expressly declared that this clause might be pleaded as a discharge in full."

Maryland was thus almost an independent state. Baltimore's t.i.tle was Lord Proprietary of Maryland, and his t.i.tle and powers were made hereditary in his family, so that he was virtually a feudal king. His rule, however, was effectually limited. The government of Maryland was carried on by a governor and a two-chambered legislature. The governor and the members of the upper house of the legislature were appointed by the lord proprietary, but the lower house of the legislature was elected, here as elsewhere, by the people; and in accordance with time-honoured English custom all taxation must originate in the lower house, which represented the people.

[Footnote 4: Browne's _Maryland: the History of a Palatinate_, p.

19.]

[Sidenote: Charter of Pennsylvania.]

[Sidenote: Mason and Dixon's line]

Half a century after the founding of Maryland, similar though somewhat less extensive proprietary powers were granted by Charles II. to William Penn, and under them the colony of Pennsylvania was founded and Delaware was purchased. Pennsylvania and Delaware had each its house of representatives elected by the people; but there was only one governor and council for the two colonies. The governor and council were appointed by the lord proprietary, and as the council confined itself to advising the governor and did not take part in legislation, there was no upper house. The legislature was one-chambered. The office of lord proprietary was hereditary in the Penn family. For about eighty years the Penns and Calverts quarrelled, like true sovereigns, about the boundary-line between their princ.i.p.alities, until in 1763 the matter was finally settled. A line was agreed upon, and the survey was made by two distinguished mathematicians, Charles Mason and Jeremiah Dixon. The line ran westward 244 miles from the Delaware River, and every fifth milestone was engraved with the arms of Penn on the one side and those of Calvert on the other. In later times, after all the states north of Maryland had abolished slavery, Mason and Dixon's line became famous as the boundary between slave states and free states.

[Sidenote: Other proprietary governments.]

At first there were other proprietary colonies besides those just mentioned, but in course of time the rights or powers of their lords proprietary were resumed by the crown. When New Netherland was conquered from the Dutch it was granted to the duke of York as lord proprietary; but after one-and-twenty years the duke ascended the throne as James II., and so the part of the colony which he had kept became the royal province of New York. The part which he had sold to Berkeley and Carteret remained for a while the proprietary colony of New Jersey, sometimes under one government, sometimes divided between two; but the rule of the lords proprietary was very unpopular, and in 1702 their rights were surrendered to the crown. The Carolinas and Georgia were also at first proprietary colonies, but after a while they willingly came under the direct sway of the crown. In general the proprietary governments were unpopular because the lords proprietary, who usually lived in England and visited their colonies but seldom, were apt to regard their colonies simply as sources of personal income. This was not the case with William Penn, or the earlier Calverts, or with James Oglethorpe, the ill.u.s.trious founder of Georgia; but it was too often the case. So long as the lord's rents, fees, and other emoluments were duly collected, he troubled himself very little as to what went on in the colony. If that had been all, the colony would have troubled itself very little about him. But the governor appointed by this absentee master was liable to be more devoted to his interests than to those of the people, and the civil service was seriously damaged by worthless favourites sent over from England for whom the governor was expected to find some office that would pay them a salary. On the whole, it seemed less unsatisfactory to have the governors appointed by the crown; and so before the Revolutionary War all the proprietary governments had fallen, except those of the Penns and the Calverts, which doubtless survived because they were the best organized and best administered.

[Sidenote: At the time of the Revolution there were three forms of colonial government: 1. Republican, 2. Proprietary, 3. Royal.]

There were thus at the time of the Revolutionary War three forms of state government in the American colonies. There were, _first_, the Republican colonies, in which the governors were elected by the people, as in Rhode Island and Connecticut; _secondly,_the Proprietary colonies, in which the governors were appointed by hereditary proprietors, as in Maryland, Pennsylvania, and Delaware; _thirdly_, the Royal colonies,[5] in which the governors were appointed by the crown, as in Georgia, the two Carolinas, Virginia, New Jersey, New York, Ma.s.sachusetts, and New Hamps.h.i.+re. It is customary to distinguish the Republican colonies as _Charter_ colonies, but that is not an accurate distinction, inasmuch as the Proprietary colonies also had charters. And among the Royal colonies, Ma.s.sachusetts, having been originally a republic, still had a charter in which her rights were so defined as to place her in a somewhat different position from the other Royal colonies; so that Prof.

Alexander Johnston, with some reason, puts her in a cla.s.s by herself as a _Semi-royal_ colony.

[Footnote 5: Or, as they were sometimes called, Royal _provinces._ In the history of Ma.s.sachusetts many writers distinguish the period before 1692 as the _colonial_ period, and the period 1692 to 1774 as the _provincial_ period.]

[Sidenote: In all three forms there was a representative a.s.sembly, which alone could impose taxes.]

These differences, it will be observed, related to the character and method of filling the governor's office. In the Republican colonies the governor naturally represented the interests of the people, in the Proprietary colonies he was the agent of the Penns or the Calverts, in the Royal colonies he was the agent of the king. All the thirteen colonies alike had a legislative a.s.sembly elected by the people. The basis of representation might be different in different colonies, as we have seen that in Ma.s.sachusetts the delegates represented towns.h.i.+ps, whereas in Virginia they represented counties; but in all alike the a.s.sembly was a truly representative body, and in all alike it was the body that controlled the expenditure of public money. These representative a.s.semblies arose spontaneously because the founders of the American colonies were Englishmen used from time immemorial to tax themselves and govern themselves. As they had been wont to vote for representatives in England, instead of leaving things to be controlled by the king, so now they voted for representatives in Maryland or New York, instead of leaving things to be controlled by the governor. The spontaneousness of all this is quaintly and forcibly expressed by the great Tory historian Hutchinson, who tells us that in the year 1619 a house of burgesses _broke out_ in Virginia! as if it had been the mumps, or original sin, or any of those things that people cannot help having.

[Sidenote: The governor's council was a kind of upper house.]

This representative a.s.sembly was the lower house in the colonial legislatures. The governor always had a council to advise with him and a.s.sist him in his executive duties, in imitation of the king's privy council in England. But in nearly all the colonies this council took part in the work of legislation, and thus sat as an upper house, with more or less power of reviewing and amending the acts of the a.s.sembly.

In Pennsylvania, as already observed, the council refrained from this legislative work, and so, until some years after the Revolution, the Pennsylvania legislature was one-chambered. The members of the council were appointed in different ways, sometimes by the king or the lord proprietary, or, as in Ma.s.sachusetts, by the outgoing legislature, or, as in Connecticut, they were elected by the people.

[Sidenote: The colonial government was like the English system in miniature.]

Thus all the colonies had a government framed after the model to which the people had been accustomed in England. It was like the English system in miniature, the governor answering to the king, and the legislature, usually two-chambered, answering to parliament. And as quarrels between king and parliament were not uncommon, so quarrels between governor and legislature were very frequent indeed, except in Connecticut and Rhode Island. The royal governors, representing British imperial ideas rather than American ideas, were sure to come into conflict with the popular a.s.semblies, and sometimes became the objects of bitter popular hatred. The disputes were apt to be concerned with questions in which taxation was involved, such as the salaries of crown officers, the appropriations for war with the Indians, and so on. Such disputes bred more or less popular discontent, but the struggle did not become flagrant so long as the British parliament refrained from meddling with it.

[Sidenote: The Americans never admitted the supremacy of parliament;]

The Americans never regarded parliament as possessing any rightful authority over their internal affairs. When the earliest colonies were founded, it was the general theory that the American wilderness was part of the king's private domain and not subject to the control of parliament. This theory lived on in America, but died out in England.

On the one hand the Americans had their own legislatures, which stood to them in the place of parliament. The authority of parliament was derived from the fact that it was a representative body, but it did not represent Americans. Accordingly the Americans held that the relation of each American colony to Great Britain was like the relation between England and Scotland in the seventeenth century.

England and Scotland then had the same king, but separate parliaments, and the English parliament could not make laws for Scotland. Such is the connection between Sweden and Norway at the present day; they have the same king, but each country legislates for itself. So the American colonists held that Virginia, for example, and Great Britain had the same king, but each its independent legislature; and so with the other colonies,--there were thirteen parliaments in America, each as sovereign within its own sphere as the parliament at Westminster, and the latter had no more right to tax the people of Ma.s.sachusetts than the Ma.s.sachusetts legislature had to tax the people of Virginia.

In one respect, however, the Americans did admit that parliament had a general right of supervision over all parts of the British empire.[6]

Maritime commerce seemed to be as much the affair of one part of the empire as another, and it seemed right that it should be regulated by the central parliament at Westminster. Accordingly the Americans did not resist custom-house taxes as long as they seemed to be imposed for purely commercial purposes; but they were quick to resist direct taxation, and custom-house taxes likewise, as soon as these began to form a part of schemes for extending the authority of parliament over the colonies.

[Footnote 6: except in the regulation of maritime commerce.]

In England, on the other hand, this theory that the Americans were subject to the king's authority but not to that of parliament naturally became unintelligible after the king himself had become virtually subject to parliament.[7] The Stuart kings might call themselves kings by the grace of G.o.d, but since 1688 the sovereigns of Great Britain owe their seat upon the throne to an act of parliament.

[Footnote 7: In England there grew up the theory of the imperial supremacy of parliament.]

To suppose that the king's American subjects were not amenable to the authority of parliament seemed like supposing that a stream could rise higher than its source. Besides, after 1700 the British empire began to expand in all parts of the world, and the business of parliament became more and more imperial. It could make laws for the East India Company; why not, then, for the Company of Ma.s.sachusetts Bay?

[Sidenote: Conflict between the British and the American theories was precipitated by George III.]

Thus the American theory of the situation was irreconcilable with the British theory, and when parliament in 1765, with no unfriendly purpose, began laying taxes upon the Americans, thus invading the province of the colonial legislatures, the Americans refused to submit. The ensuing quarrel might doubtless have been peacefully adjusted, had not the king, George III., happened to be entertaining political schemes which were threatened with ruin if the Americans should get a fair hearing for their side of the case.[8] Thus political intrigue came in to make the situation hopeless. When a state of things arises, with which men's established methods of civil government are incompetent to deal, men fall back upon the primitive method which was in vogue before civil government began to exist.

They fight it out; and so we had our Revolutionary War, and became separated politically from Great Britain. It is worthy of note, in this connection, that the last act of parliament, which brought matters to a crisis, was the so-called Regulating Act of April, 1774, the purpose of which was to change the government of Ma.s.sachusetts.

This act provided that members of the council should be appointed by the royal governor, that they should be paid by the crown and thus be kept subservient to it, that the princ.i.p.al executive and judicial officers should be likewise paid by the crown, and that town-meetings should be prohibited except for the sole purpose of electing town officers. Other unwarrantable acts were pa.s.sed at the same time, but this was the worst. Troops were sent over to aid in enforcing this act, the people of Ma.s.sachusetts refused to recognize its validity, and out of this political situation came the battles of Lexington and Bunker Hill.

[Footnote 8: See my _War of Independence_, pp. 58-64, 69-71 (Riverside Library for Young People).]

QUESTIONS ON THE TEXT.

1. Various claims to North America:--

a. Spanish.

b. English.

c. French.