THE AMERICAN GOVERNMENT OF THE REVOLUTIONARY PERIOD
The American colonists inherited the common law and the political
institutions of the mother country. The British form of government, with
its King, Lords and Commons and its checks upon the people, they
accepted as a matter of course. In their political thinking they were
not consciously more democratic than their kinsmen across the Atlantic.
Many of them, it is true, had left England to escape what they regarded
as tyranny and oppression. But to the _form_ of the English government
as such they had no objection. The evils which they experienced were
attributed solely to the selfish spirit in which the government was
administered.
The conditions, however, were more favorable for the development of a
democratic spirit here than in the mother country. The immigrants to
America represented the more active, enterprising and dissatisfied
elements of the English people. Moreover, there was no hereditary
aristocratic class in the colonies and less inequality in the
distribution of wealth. This approach to industrial and social equality
prepared the mind for the ideas of political equality which needed only
the stimulus of a favorable opportunity to ensure their speedy
development.
This opportunity came with the outbreak of the American Revolution which
at the outset was merely an organized and armed protest against what the
colonies regarded as an arbitrary and unconstitutional exercise of the
taxing power. As there was no widespread or general dissatisfaction with
the _form_ of the English government, there is scarcely room for doubt
that if England had shown a more prudent and conciliatory spirit toward
the colonies, the American Revolution would have been averted. No
sooner, however, had the controversy with the mother country reached the
acute revolutionary stage, than the forces which had been silently and
unconsciously working toward democracy, found an opportunity for
political expression. The spirit of resistance to what was regarded as
unconstitutional taxation rapidly assumed the form of avowed opposition
to the English Constitution itself. The people were ready for a larger
measure of political democracy than the English Constitution of the
eighteenth century permitted. To this new and popular view of government
the Declaration of Independence gave expression. It contained an
emphatic, formal and solemn disavowal of the political theory embodied
in the English Constitution; affirmed that "all men are created equal;"
that governments derive "their just powers from the consent of the
governed;" and declared the right of the people to alter or to abolish
the form of the government "and to institute new government, laying its
foundation on such principles and organizing its powers in such form, as
to them shall seem most likely to effect their safety and happiness."
This was a complete and sweeping repudiation of the English political
system, which recognized the right of monarchy and aristocracy to thwart
the will of the people.
To what extent the Declaration of Independence voiced the general
sentiment of the colonies is largely a matter of conjecture. It is
probable, however, that its specification of grievances and its vigorous
arraignment of the colonial policy of the English government appealed to
many who had little sympathy with its express and implied advocacy of
democracy. It is doubtless true that many were carried along with the
revolutionary movement who by temperament and education were strongly
attached to English political traditions. It is safe to conclude that a
large proportion of those who desired to see American independence
established did not believe in thoroughgoing political democracy.
Besides those who desired independence without being in sympathy with
the political views expressed in the Declaration of Independence, there
were many others who were opposed to the whole Revolutionary movement.
The numerical strength of the Tories can not be accurately estimated;
but it is certain that a large proportion, probably not less than
one-third of the total population of the colonies, did not approve of
the war.[4]
"In the first place, there was, prior to 1776, the official class; that
is, the men holding various positions in the civil and military and
naval services of the government, their immediate families, and their
social connections. All such persons may be described as inclining to
the Loyalist view in consequence of official bias.
"Next were certain colonial politicians who, it may be admitted, took a
rather selfish and an unprincipled view of the whole dispute, and who,
counting on the probable, if not inevitable, success of the British arms
in such a conflict, adopted the Loyalist side, not for conscience' sake,
but for profit's sake, and in the expectation of being rewarded for
their fidelity by offices and titles, and especially by the confiscated
estates of the rebels after the rebels themselves should have been
defeated, and their leaders hanged or sent into exile.
"As composing still another class of Tories, may be mentioned probably a
vast majority of those who stood for the commercial interests, for the
capital and tangible property of the country, and who, with the
instincts natural to persons who have something considerable to lose,
disapproved of all measures for pushing the dispute to the point of
disorder, riot and civil war.
"Still another class of Loyalists was made up of people of professional
training and occupation--clergymen, physicians, lawyers, teachers--a
clear majority of whom seem to have been set against the ultimate
measures of the Revolution.
"Finally, and in general, it may be said that a majority of those who,
of whatever occupation, of whatever grade of culture or of wealth, would
now be described as conservative people, were Loyalists during the
American Revolution."[5]
These classes prior to the Revolution had largely shaped and molded
public opinion; but their opposition to the movement which they were
powerless to prevent, destroyed their influence, for the time being, in
American politics. The place which they had hitherto held in public
esteem was filled by a new class of leaders more in sympathy with the
newly born spirit of liberalism. This gave to the revolutionary movement
a distinctly democratic character.
This drift toward democracy is seen in the changes made in the state
constitutions after the outbreak of the Revolution. At the close of the
colonial period, nearly all the state governments were modeled after the
government of Great Britain. Each colony had its legislative body
elected by the qualified voters and corresponding in a general way to
the House of Commons. In all the colonies except Pennsylvania and
Georgia there was also an upper legislative house or council whose
consent was necessary before laws could be enacted. The members
composing this branch of the legislature were appointed by the governor
except in Massachusetts where they were elected by the lower branch of
the legislature, subject to a negative by the royal governor, and in
Rhode Island and Connecticut where they were chosen by the electorate.
The governor was elected by the voters only in Rhode Island and
Connecticut; in all the other colonies he was appointed by the
proprietaries or the Crown, and, though independent of the people,
exercised many important powers. He was commander-in-chief of the armed
forces of the colony; appointed the judges and all other civil and
military officers; appointed and could suspend the council, which was
usually the upper branch of the legislature; he could convene and
dissolve the legislature and had besides an unqualified veto on all
laws; he also had an unrestricted pardoning power.
The possession of these far-reaching powers gave to the irresponsible
executive branch of the colonial government a position of commanding
importance. This was not the case, however, in Connecticut and Rhode
Island. Although the governor in these two colonies was responsible to
the voters, inasmuch as he was elected by them, still he had no veto,
and the appointing power was in the hands of the legislature.
The tidal-wave of democracy, which swept over the colonies during the
Revolution, largely effaced the monarchical and aristocratic features of
the colonial governments. Connecticut and Rhode Island, which already
had democratic constitutions, were the only states which did not modify
their form of government during this period. All the rest adopted new
constitutions which show in a marked degree the influence of the
democratic movement. In these new constitutions we see a strong tendency
to subordinate the executive branch of the government and confer all
important powers on the legislature. In the four New England states and
in New York the governor was elected by the qualified voters; in all the
rest he was chosen by the legislature. In ten states during this period
his term of office was one year; in South Carolina it was two and in New
York and Delaware it was three years. In addition to this the six
Southern states restricted his re-election. Besides, there was in every
state an executive or privy council which the governor was required to
consult on all important matters. This was usually appointed by the
legislature and constituted an important check on the governor.
The power to veto legislation was abolished in all but two states. In
Massachusetts the governor, and in New York the Council of Revision
composed of the governor and the chancellor and judges of the Supreme
Court, had a qualified veto power. But a two-thirds majority in both
houses of the legislature could override the veto of the governor in
Massachusetts, or that of the Council of Revision in New York. The
pardoning power of the governor was quite generally restricted. In five
states he was allowed to exercise it only with the advice or consent of
the council.[6] In three states, where the advice or consent of a
council was not required, he could, subject to certain restrictions,
grant pardons except where "the law shall otherwise direct."[7] The
constitution of Georgia in express terms deprived the governor of all
right to exercise this power.
The appointing power of the governor was also taken away or restricted.
In four of the eleven states adopting new constitutions during this
period he was allowed to exercise it jointly with the council.[8] In six
states it was given to the legislature, or to the legislature and
council.[9] The power of the governor to dissolve the legislature or
either branch of it was everywhere abolished.
The supremacy of the legislature under these early state constitutions
is seen also in the manner of appointment, the tenure and the powers of
the judiciary. In nine states[10] the judges were elected by the state
legislature, either with or without the consent of a council. In
Maryland, Massachusetts, New Hampshire, and Pennsylvania they were
appointed by the governor with the consent of the council. But this
really amounted to indirect legislative appointment in Maryland, since
both the governor and council in that state were elected annually by the
legislature. The legislature also had a voice in the appointment of
judges in Pennsylvania, New Hampshire and Massachusetts, since it
elected the executive in the first and the council in the others. In
nine states, then, the judges were elected directly by the legislature;
in one indirectly by the legislature; in the other three the legislature
participated in their election through an executive or a council of its
own choosing.
In every state the judges could be impeached by the lower branch of the
legislature and expelled from office on conviction by the senate or
other tribunal, as the constitution prescribed. Moreover, in six
states[11] they could be removed according to the English custom by the
executive on an address from both branches of the legislature. The term
of office of the judges in eight states[12] was during good behavior. In
New Jersey and Pennsylvania they were appointed for seven years, and in
Rhode Island, Connecticut, and Georgia they were chosen annually.
The legislature under these early state constitutions was hampered
neither by the executive nor by the courts. It had all law-making power
in its own hands. In no state could the courts thwart its purpose by
declaring its acts null and void. Unchecked by either executive or
judicial veto its supremacy was undisputed.
From the foregoing synopsis of the state constitutions of this period it
is evident that their framers rejected entirely the English theory of
checks and balances. The principle of separation of powers as expounded
by Montesquieu and Blackstone, found little favor with those who
controlled American politics at this time. Instead of trying to
construct a state government composed of coordinate branches, each
acting as a check upon the others, their aim was to make the legislature
supreme. In this respect the early state constitutions anticipated much
of the later development of the English government itself.
The checks and balances, and separation of powers, which characterized
the government of England and her American colonies in the eighteenth
century, resulted from the composite character of the English
Constitution--its mixture of monarchy, aristocracy, and democracy. It is
not surprising, then, that with the temporary ascendency of the
democratic spirit, the system of checks should have been largely
discarded.
This democratic tendency is seen also in our first federal constitution,
the Articles of Confederation, which was framed under the impulse of the
Revolutionary movement. This document is interesting as an expression of
the political philosophy of the Revolution; but like the state
constitutions of that period, it has had few friendly critics among
later political writers. Much emphasis has been put upon its defects,
which were many, while but little attention has been given to the
political theory which it imperfectly embodied. That it failed to
provide a satisfactory general government may be admitted; but this
result must not be accepted as conclusive proof that the principles
underlying it were altogether false.
The chief feature of the Articles of Confederation was the entire
absence of checks and balances. All the powers conferred upon the
general government were vested in a single legislative body called the
Continental Congress, which was unchecked by a distinct executive or
judiciary. In this respect it bore a striking resemblance to the English
government of to-day with its omnipotent House of Commons. But, unlike
the English government of to-day, its powers were few and narrowly
limited. Its failure was due, perhaps, not to the fact that the powers
granted to the confederation were vested exclusively in a single
legislative body, but to the fact that the powers thus granted were not
sufficient for maintaining a strong and effective central government.
The reason for the weakness of the general government under the Articles
of Confederation is obvious to the student of American history. It was
only gradually, and as necessity compelled cooperation between the
colonies, that the sentiment in favor of political union developed. And
though some tendencies in this direction are seen more than a century
before the American Revolution, the progress toward a permanent union
was slow and only the pressure of political necessity finally brought it
about.
As early as 1643 Massachusetts, Plymouth, Connecticut and New Haven
formed a "perpetual confederation" under the name of the "United
Colonies of New England." The motive for this union was mainly offence
and defence against the Indian tribes and the Dutch, though provision
was also made for the extradition of servants and fugitives from
justice. The management of the common interests of these colonies was
vested in a board of eight commissioners--two from each colony--and, in
transacting the business of the confederacy, the consent of six of the
eight commissioners was required. Any matter which could not be thus
disposed of was to be referred to the four colonial legislatures. The
general government thus provided for could not inter-meddle "with the
government of any of the jurisdictions." No provision was made for
amending the "Articles of Confederation," and only by the unanimous
consent of these colonies could any other colony be admitted to the
confederacy. This union lasted for over forty years.[13]
Again in 1754 the pressure of impending war with the French and Indians
brought together at Albany a convention of delegates from seven colonies
north of the Potomac. A plan of union drafted by Benjamin Franklin was
recommended by this convention, but it was not regarded with favor
either by the colonies or by the English government. The former regarded
it as going too far in the direction of subordinating the separate
colonies to a central colonial authority, while for the latter it was
too democratic.[14]
The union of all the colonies under the Articles of Confederation was
finally brought about through the pressure of military necessity during
the Revolution. Nor is it surprising, in view of the history of the
American colonies, that they reluctantly yielded up any powers to a
central authority. We must bear in mind that the Revolution was in a
measure a democratic movement, and that democracy was then found only in
local government. The general governments of all countries were at that
time monarchical or aristocratic. Tyranny in the eighteenth century was
associated in the minds of the people with an undue extension or abuse
of the powers exercised by the undemocratic central government. It is
not surprising, then, that the Revolutionary federal constitution, the
Articles of Confederation, should have failed to provide a general
government sufficiently strong to satisfy the needs of the country after
the return of peace.
It must not be inferred, however, that the political changes which
immediately followed the outbreak of the Revolution were in the nature
of sweeping democratic reforms. Much that was thoroughly undemocratic
remained intact. The property qualifications for the suffrage were not
disturbed by the Revolutionary movement and were finally abolished only
after the lapse of nearly half a century. The cruel and barbarous system
of imprisonment for debt which the colonies had inherited from England,
and which often made the lot of the unfortunate debtor worse than that
of the chattel slave, continued in several of the states until long
after the Revolution. Marked as was the democratic tendency during the
first few years of our independence, it nevertheless left untouched much
that the progress of democracy has since abolished.