Formation of the Union

A >> Albert Bushnell Hart >> Formation of the Union

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[Sidenote: Settlements.]
[Sidenote: American character.]

The population of 1,370,000 people occupied a space which in 1890
furnished homes for more than 25,000,000. The settlements as yet rested
upon, or radiated from, the sea-coast and the watercourses; eight-tenths
of the American people lived within easy reach of streams navigable to the
sea. Settlements had crept up the Mohawk and Susquehanna valleys, but they
were still in the midst of the wilderness. Within each colony the people
had a feeling of common interest and brotherhood. Distant, outlying, and
rebellious counties were infrequent. The Americans of 1750 were in
character very like the frontiersmen of to-day, they were accustomed to
hard work, but equally accustomed to abundance of food and to a rude
comfort; they were tenacious of their rights, as became offshoots of the
Anglo-Saxon race. In dealing with their Indian neighbors and their slaves
they were masterful and relentless. In their relations with each other
they were accustomed to observe the limitations of the law. In deference
to the representatives of authority, in respect for precedent and for the
observances of unwritten custom, they went beyond their descendants on the
frontier. Circumstances in America have greatly changed in a century and a
half: the type of American character has changed less. The quieter,
longer-settled communities of that day are still fairly represented by
such islands of undisturbed American life as Cape Cod and Cape Charles.
The industrious and thriving built good houses, raised good crops, sent
their surplus abroad and bought English goods with it, went to church, and
discussed politics. In education, in refinement, in literature and art,
most of the colonists had made about the same advance as the present
farmers of Utah. The rude, restless energy of modern America was not yet
awakened.

4. INHERITED INSTITUTIONS.

[Sidenote: Sources of American government.]

In comparison with other men of their time, the Americans were
distinguished by the possession of new political and social ideas, which
were destined to be the foundation of the American commonwealth. One of
the strongest and most persistent elements in national development has
been that inheritance of political traditions and usages which the new
settlers brought with them. Among the more rigid sects of New England the
example of the Hebrew theocracy, as set forth in the Scriptures, had great
influence on government; they were even more powerfully affected by the
ideas of the Christian commonwealth held by the Protestant theologians,
and particularly by John Calvin. The residence of the Plymouth settlers in
the Netherlands, and the later conquest of the Dutch colonies, had brought
the Americans into contact with the singularly wise and free institutions
of the Dutch. To some degree the colonial conception of government had
been affected by the English Commonwealth of 1649, and the English
Revolution of 1688. The chief source of the political institutions of the
colonies was everywhere the institutions with which they were familiar at
the time of the emigration from England. It is not accurate to assert that
American government is the offspring of English government. It is nearer
the truth to say that in the middle of the seventeenth century the Anglo-
Saxon race divided into two branches, each of which developed in its own
way the institutions which it received from the parent stock. From the
foundation of the colonies to 1789 the development of English government
had little influence on colonial government. So long as the colonies were
dependent they were subject to English regulation and English legal
decisions, but their institutions developed in a very different direction.

[Sidenote: Political ideas.]

Certain fundamental political ideas were common to the older and the
younger branches of the Anglo-Saxon race, and have remained common to this
day. The first was the idea of the supremacy of law, the conception that a
statute was binding on the subject, on the members of the legislative
body, and even on the sovereign. The people on both sides of the water
were accustomed to an orderly government, in which laws were made and
administered with regularity and dignity. The next force was the
conception of an unwritten law, of the binding power of custom. This idea,
although by no means peculiar to the English race, had been developed into
an elaborate "common law,"--a system of legal principles accepted as
binding on subject and on prince, even without a positive statute. Out of
these two underlying principles of law had gradually developed a third
principle, destined to be of incalculable force in modern governments,--
the conception of a superior law, higher even than the law-making body. In
England there was no written constitution, but there was a succession of
grants or charters, in which certain rights were assured to the
individual. The long struggle with the Stuart dynasty in the seventeenth
century was an assertion of these rights as against the Crown. In the
colonies during the same time those rights were asserted against all
comers,--against the colonial governors, against the sovereign, and
against Parliament. The original colonies were almost all founded on
charters, specific grants which gave them territory and directed in what
manner they should carry on government therein. These charters were held
by the colonists to be irrevocable except for cause shown to the
satisfaction of a court of law; and it was a recognized right of the
individual to plead that a colonial law was void because contrary to the
charter. Most of the grants had lapsed or had been forcibly, and even
illegally, annulled; but the principle still remained that a law was
superior to the will of the ruler, and that the constitution was superior
to the law. Thus the ground was prepared for a complicated federal
government, with a national constitution recognized as the supreme law,
and superior both to national enactments and to State constitutions or
statutes.

[Sidenote: Principles of freedom.]

The growth of constitutional government, as we now understand it, was
promoted by the establishment of two different sets of machinery for
making laws and carrying on government. The older and the younger branches
of the race were alike accustomed to administer local affairs in local
assemblies, and more general affairs in a general assembly. The two
systems in both countries worked side by side without friction; hence
Americans and Englishmen were alike unused to the interference of
officials in local matters, and accustomed through their representatives
to take an educating share in larger affairs. The principle was firmly
rooted on both sides of the water that taxes were not a matter of right,
but were a gift of the people, voted directly or through their
representatives. On both sides of the water it was a principle also that a
subject was entitled to his freedom unless convicted of or charged with a
crime, and that he should have a speedy, public, and fair trial to
establish his guilt or innocence. Everywhere among the English-speaking
race criminal justice was rude, and punishments were barbarous; but the
tendency was to do away with special privileges and legal exemptions.
Before the courts and before the tax-gatherers all Englishmen stood
practically on the same basis.

5. COLONIAL DEVELOPMENT OF ENGLISH INSTITUTIONS.

Beginning at the time of colonization with substantially the same
principles of liberty and government, the two regions developed under
circumstances so different that, at the end of a century and a half, they
were as different from each other as from their prototype.

[Sidenote: Separation of departments.]
[Sidenote: Aristocracy.]

The Stuart sovereigns of England steadily attempted to strengthen their
power, and the resistance to that effort caused an immense growth of
Parliamentary influence. The colonies had little occasion to feel or to
resent direct royal prerogative. To them the Crown was represented by
governors, with whom they could quarrel without being guilty of treason,
and from whom in general they feared very little, but whom they could not
depose. Governors shifted rapidly, and colonial assemblies eventually took
over much of the executive business from the governors, or gave it to
officers whom they elected. But while, in the eighteenth century, the
system of a responsible ministry was growing up in England under the
Hanoverian kings, the colonies were accustomed to a sharp division between
the legislative and the executive departments. Situated as they were at a
great distance from the mother-country, the assemblies were obliged to
pass sweeping laws. The easiest way of checking them was to limit the
power of the assemblies by strong clauses in the charters or in the
governor's instructions; and to the very last the governors, and above the
governors the king, retained the power of royal veto, which in England was
never exercised after 1708. Thus the colonies were accustomed to see their
laws quietly and legally reversed, while Parliament was growing into the
belief that its will ought to prevail against the king or the judges. In a
wild frontier country the people were obliged to depend upon their
neighbors for defence or companionship. More emphasis was thus thrown upon
the local governments than in England. The titles of rank, which continued
to have great social and political force in England, were almost unknown
in America. The patroons in New York were in 1750 little more than great
land-owners; the fanciful system of landgraves, palsgraves, and caciques
in Carolina never had any substance. No permanent colonial nobility was
ever created, and but few titles were conferred on Americans. An American
aristocracy did grow up, founded partly on the ownership of land, and
partly on wealth acquired by trade. It existed side by side with a very
open and accessible democracy of farmers.

[Sidenote: Powers of the colonies.]

The gentlemen of the colonies were leaders; but if they accepted too many
of the governor's favors or voted for too many of that officer's measures,
they found themselves left out of the assemblies by their independent
constituents. The power over territory, the right to grant wild lands, was
also peculiar to the New World, and led to a special set of difficulties.
In New England the legislatures insisted on sharing in this power. In
Pennsylvania there was an unceasing quarrel over the proprietors' claim to
quit-rents. Farther south the governors made vast grants unquestioned by
the assemblies. In any event, colonization and the grant of lands were
provincial matters. Each colony became accustomed to planting new
settlements and to claiming new boundaries. The English common law was
accepted in all the colonies, but it was modified everywhere by statutes,
according to the need of each colony. Thus the tendency in colonial
development was toward broad legislation on all subjects; but at the same
time the limitations laid down by charters, by the governor's
instructions, or by the home government, increased and were observed.
Although the assemblies freely quarrelled with individual governors and
sheared them of as much power as they could, the people recognized that
the executive was in many respects beyond their reach. The division of the
powers of government into departments was one of the most notable things
in colonial government, and it made easier the formation of the later
state and national governments.

6. LOCAL GOVERNMENT IN THE COLONIES.

[Sidenote: English local government.]

In each colony in 1750 were to be found two sets of governing
organizations,--the local and the general. The local unit appears at
different times and in different colonies under many names; there were
towns, townships, manors, hundreds, ridings, liberties, parishes,
plantations, shires, and counties. Leaving out of account minor
variations, there were three types of local government,--town government,
county government, and a combination of the two. Each of these forms was
founded on a system with which the colonists were familiar at the time of
settlement, but each was modified to meet the changed conditions of
America. The English county in 1600 was a military and judicial
subdivision of the kingdom; but for some local purposes county taxes were
levied by the quarter sessions, a board of local government. The officers
were the lord lieutenant, who was the military commander, and the justices
of the peace, who were at the same time petty judges and members of the
administrative board. The English "town" had long since disappeared except
as a name, but its functions were in 1600 still carried out by two
political bodies which much resembled it: the first was the parish,--an
organization of persons responsible as tax-payers for the maintenance of
the church building. In some places an assembly of these tax-payers met
periodically, chose officers, and voted money for the church edifice, the
poor, roads, and like local purposes. In other places a "select vestry,"
or corporation of persons filling its own vacancies, exercised the powers
of parish government. In such cases the members were usually of the more
important persons in the parish. The other wide-spread local organization
was the manor; in origin this was a great estate, the tenants of which
formed an assembly and passed votes for their common purposes.

[Sidenote: Towns.]

From these different forms of familiar local government the colonists
chose those best suited to their own conditions. New Englanders were
settled in compact little communities; they liked to live near the church,
and where they could unite for protection from enemies. They preferred the
open parish assembly, to which they gave the name of "town meeting." Since
some of the towns were organized before the colonial legislatures began to
pass comprehensive laws, the towns continued, by permission of the
colonial governments, to exercise extended powers. The proceedings of a
Boston town meeting in 1731 are thus reported:--

"After Prayer by the Revt. mr. John Webb,

"Habijah Savage Esqr. was chose to be Moderator for this meeting

"Proposed to Consider About Reparing mr. Nathaniell Williams His Kitchen
&c.--

"In Answer to the Earnest Desire of the Honourable House of
Representatives--

"Voted an Entire Satisfaction in the Town in the late Conduct of their
Representatives in Endeavoring to preserve their Valuable Priviledges, And
Pray their further Endeavors therein--

"Voted. That the Afair of Repairing of the Wharff leading to the North
Battrey, be left with the Selectmen to do therein as they Judge best--"

[Sidenote: Counties.]

The county was also organized in New England, but took on chiefly judicial
and military functions, and speedily abandoned local administration. In
the South the people settled in separate plantations, usually strung out
along the rivers. Popular assemblies were inconvenient, and for local
purposes the people adopted the English select vestry system in what they
called parishes. The county government was emphasized, and they adopted
the English system of justices of the peace, who were appointed by the
governor and endowed with large powers of county legislation. Hence in the
South the local government fell into the hands of the principal men of
each parish without election, while in New England it was in the hands of
the voters.

[Sidenote: Mixed System.]

In some of the middle colonies the towns and counties were both active and
had a relation with each other which was the forerunner of the present
system of local government in the Western States. In New York each town
chose a member of the county board of supervisors; in Pennsylvania the
county officers as well as the town officers became elective. Whatever the
variations, the effect of local government throughout the colonies was the
same. The people carried on or neglected their town and county business
under a system defined by colonial laws; but no colonial officer was
charged with the supervision of local affairs. In all the changes of a
century and a half since 1750 these principles of decentralization have
been maintained.

7. COLONIAL GOVERNMENT.

[Sidenote: General form.]
[Sidenote: Suffrage.]

Earlier than local governments in their development, and always superior
to them in powers, were the colonial governments. In 1750 there was a
technical distinction between the charter governments of Connecticut,
Massachusetts, and Rhode Island, the proprietary governments of
Pennsylvania, Delaware, and Maryland, and the provincial governments of
the eight other continental colonies. In the first group there were
charters which were substantially written constitutions binding on both
king and colonists, and unalterable except by mutual consent. In the
second group some subject, acting under a royal charter, appointed the
governors, granted the lands, and stood between the colonists and the
Crown. In the third group, precedent and the governor's instructions were
the only constitution. In essence, all the colonies of all three groups
had the same form of government. In each there was an elective
legislature; in each the suffrage was very limited; everywhere the
ownership of land in freehold was a requisite, just as it was in England,
for the county suffrage. In many cases there was an additional provision
that the voter must have a specified large quantity of land or must pay
specified taxes. In some colonies there was a religious requirement. The
land qualification worked very differently from the same system in
England. Any man of vigor and industry might acquire land; and thus,
without altering the letter of the law to which they were accustomed, the
colonial suffrage was practically enlarged, and the foundations of
democracy were laid. Nevertheless, the number of voters at that time was
not more than a fifth to an eighth as large in proportion to the
population as at present. In Connecticut in 1775 among 200,000 people
there were but 4,325 voters. In 1890, the fourth Connecticut district,
having about the same population, cast a vote of 36,500.

[Sidenote: Legislature.]

The participation of the people in their own government was the more
significant, because the colonies actually had what England only seemed to
have,--three departments of government. The legislative branch was
composed in almost all cases of two houses; the lower house was elective,
and by its control over money bills it frequently forced the passage of
measures unacceptable to the co-ordinate house. This latter, except in a
few cases, was a small body appointed by the governor, and had the
functions of the executive council as well as of an upper house. The
governor was a third part of the legislature in so far as he chose to
exercise his veto power. The only other limitation on the legislative
power of the assemblies was the general proviso that no act "was to be
contrary to the law of England, but agreeable thereto."

[Sidenote: Executive.]

The governor was the head of the executive department,--sometimes a native
of the colony, as Hutchinson of Massachusetts, and Clinton of New York.
But he was often sent from over seas, as Cornbury of New York, and Dunmore
of Virginia. In Connecticut and Rhode Island the legislatures chose the
governor; but they fell in with the prevailing practice by frequently re-
electing men for a succession of years. The governor's chief power was
that of appointment, although the assemblies strove to deprive him of it
by electing treasurers and other executive officers. He had also the
prestige of his little court, and was able to form at least a small party
of adherents. As a representative of the home government he was the object
of suspicion and defiance. As the receiver and dispenser of annoying fees,
he was likely to be unpopular; and wherever it could do so, the assembly
made him feel his dependence upon it for his salary.

[Sidenote: Judiciary.]

Colonial courts were nearly out of the reach of the assemblies, except
that their salaries might be reduced or withheld. The judges were
appointed by the governor, held during good behavior, and were reasonably
independent both of royal interference and of popular clamor. The
governor's council was commonly the highest court in the colony; hence the
question of the constitutionality of an act was seldom raised: since the
council could defeat the bill by voting against it, it was seldom
necessary to quash it by judicial process. Legal fees were high, and the
courts were the most unpopular part of the governments.

8. ENGLISH CONTROL OF THE COLONIES.

[Sidenote: English statutes.]
[Sidenote: The Crown.]
[Sidenote: Parliament.]

In Connecticut and Rhode Island, where the governor was not appointed by
the Crown, the colonies closely approached the condition of republics; but
even in these cases they acknowledged several powers in England to which
they were all subject. First came English law. It was a generally accepted
principle that all English statutes in effect at the time of the first
colonization held good for the colonies so far as applicable; and the
principles of the common law were everywhere accepted. Second came the
Crown. When the colonies were founded, the feudal system was practically
dead in England; but the conception that the Crown held the original title
to all the lands was applied in the colonies, so that all titles went back
to Indian or royal grants. Parliament made no protest when the king
divided up and gave away the New World. Parliament acquiesced when by
charter he created trading companies and bestowed upon them powers of
government. Down to 1765 Parliament seldom legislated for individual
colonies, and it was generally held that the colonies were not included in
English statutes unless specially mentioned. The Crown created the
colonies, gave them governors, permitted the local assemblies to grow up,
and directed the course of the colonial executive by royal instructions.

[Sidenote: Means of control.]

The agent of the sovereign in these matters was from 1696 to 1760 the so-
called Lords of the Board of Trade and Plantations. This commission,
appointed by The Crown, corresponded with the governors, made
recommendations, and examined colonial laws. Through them were exercised
the two branches of English control. Governors were directed to carry out
a specified policy or to veto specified classes of laws. If they were
disobedient or weak, the law might still be voided by a royal rescript.
The attorneys-general of the Crown were constantly called on to examine
laws with a view to their veto, and their replies have been collected in
Chalmers's "Opinions,"--a storehouse of material concerning the relations
of the colonies with the home government. The process of disallowance was
slow. Laws were therefore often passed in the colonies for successive
brief periods, thus avoiding the effects of a veto; or "Resolves" were
passed which had the force, though not the name, of statutes. In times of
crisis the Crown showed energy in trying to draw out the military strength
of the colonies; but if the assemblies hung back there was no means of
forcing them to be active. During the Stuart period the troubles at home
prevented strict attention to colonial matters. Under the Hanoverian kings
the colonies were little disturbed by any active interference. In one
respect only did the home government press hard upon the colonies. A
succession of Navigation Acts, beginning about 1650, limited the English
colonies to direct trade with the home country, in English or colonial
vessels. Even between neighboring English colonies trade was hampered by
restrictions or absolute prohibitions. Against the legal right of
Parliament thus to control the trade of the colonies the Americans did not
protest. Protest was unnecessary, since in 1750 the Acts were
systematically disregarded: foreign vessels carried freights to and from
American ports; American goods were shipped direct to foreign countries
(sec. 23; Colonies, secs. 44, 128).

9. SOCIAL AND ECONOMIC CONDITIONS.

[Sidenote: Social life.]
[Sidenote: Intellectual life.]
[Sidenote: Economic conditions.]

Thus, partly from circumstances, and partly by their own design, the
colonies in 1750 were developing a political life of their own. Changes of
dynasties and of sovereigns or of ministers in England little affected
them. In like manner their social customs were slowly changing. The
abundance of land favored the growth of a yeoman class accustomed to take
part in the government. Savage neighbors made necessary a rough military
discipline, and the community was armed. The distance from England and an
independent spirit threw great responsibility on the assemblies. The
general evenness of social conditions, except that some men held more land
than others, helped on a democratic spirit. The conditions of the colonies
were those of free and independent communities. On the other hand,
colonial life was at best retired and narrow; roads were poor, inns
indifferent, and travelling was unusual. The people had the boisterous
tastes and dangerous amusements of frontiersmen. Outside of New England
there were almost no schools, and in New England schools were very poor.
In 1750 Harvard, Yale, William and Mary, and the College of New Jersey
(now Princeton) were the only colleges, and the education which they gave
was narrower than that now furnished by a good high school. Newspapers
were few and dull. Except in theology, there was no special instruction
for professional men. In most colonies lawyers were lightly esteemed, and
physicians little known. City life did not exist; Philadelphia, Boston,
New York, and Charleston were but provincial towns. The colonies had only
three industries,--agriculture, the fisheries, and shipping. Tobacco had
for more than a century been the staple export. Next in importance was the
New England fishery, employing six hundred vessels, and the commerce with
the West Indies, which arose out of that industry. Other staple exports
were whale products, bread-stuffs, naval stores, masts, and pig-iron.
The total value of exports in 1750 is estimated at 814,000 pounds. To carry
these products a fleet of at least two hundred vessels was employed;
they were built in the colonies north of Virginia, and most of them in New
England. The vessels themselves were often sold abroad. With the proceeds
of the exports the colonists bought the manufactured articles which they
prized. Under the Navigation Acts these ought all to have come from
England; but French silks, Holland gin, and Martinique sugar somehow found
their way into the colonies. The colonists and the home government tried
to establish new industries by granting bounties. Thus the indigo culture
in South Carolina was begun, and many unsuccessful attempts were made to
start silk manufactures and wine raising. The method of stimulating
manufactures by laying protective duties was not unknown; but England
could not permit the colonies to discriminate against home merchants, and
had no desire to see them establish by protective duties competitors for
English manufactures. Nevertheless, Pennsylvania did in a few cases lay
low protective duties. Except for the sea-faring pursuits of the Northern
colonies, the whole continental group was in the same dependent condition.
The colonists raised their own food and made their own clothes; the
surplus of their crops was sent abroad and converted into manufactured
goods.

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