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course, the declaration of the preamble for the total suppression of "every kind of authority of the said Crown," and for the exertion of "all the powers of government under the authority of the people of the Colonies."
The first reaction to this momentous resolution was the withdrawal of the delegates from Maryland. According to a letter of James Duane, they "declared that they should consider their colony as unrepresented until they received the directions of their principals, who were then sitting at Annapolis.” On the 24th of May, "the sense of that convention was made public; they approved of the conduct of their delegates in dissenting from the preamble and resolution; they repeat and enforce their former instructions, declare that they have not lost sight of a reconciliation with Great Britain, and that they will adhere to the common cause and support it on the principles of the Union as explained at the time of entering on the war." But, as we shall see presently, there was a force in Maryland that was stronger than the convention. It was public opinon. Agitation for the formation of a State constitution began almost at once, and the work was begun and completed and the new constitution adopted within less than seven months from the day when the Maryland delegates walked out of the Continental Congress at Philadelphia.
The exhortation having thus been given to the States to frame governments for themselves, and the need of so doing having become unmistakably apparent, questions at once arose as to the jurisdiction competent for the purpose and as to the mode of procedure. So novel was the task of creating an organic law that the opinion was quite generally prevalent that it fell within the powers and duties of the ordinary legislative authority of the State, whether called "assembly," "provincial congress,' or what not. Yet there was dissent. A belief began to spring up in the minds of the American people that this was no ordinary process of legislation, but an act so solemn, so vitally affecting their welfare, fraught with such enduring and momentous consequences, that it should only be given into the hands of a convention, fully representative of the people, specially chosen by them, and commissioned for that purpose alone. Nor was this all. For many thought that even such a convention should not be trusted with irrevocable powers, but that their finished work ought to be submitted to the electorate for their approbation, amendment, or rejection.
The inception and spread of these ideas might be illustrated by many examples; but a few must suffice. In Massachusetts, for example, the legislature in 1776 desired to frame and promulgate a constitution for the State, but first sought the consent of the several towns and counties. It was quite generally refused. The people of Concord, in their town meeting, resolved that the legislature was no proper body to establish a new form of government, because, as they said, "we conceive that a constitution, in its proper idea, intends a sysem of principles established to secure the subjects in the possession and enjoyment of their rights and privileges against any encroachment of the governing part," and because "the same body that forms a constitution have of consequence a power to alter it," and because "a constitution alterable by the supreme legislative is no security at all against the encroachment of the governing part on any or all of their rights and privileges. The peopole of Sutton in like manner declared their disapprobation of the plan "because we think it irrational for us to consent to the setting up of any constitution unknown to us, or to vote for anything before we see what it is we vote for. The Committee of Safety of Worcester County voted "that a State congress, chosen for the sole purpose of forming a constitution of government, is, in the opinion of this committee, more eligible than a House of Representatives;" and further, "that the plan of government, when formed, be laid before the people for their inspection, approbation, rejection, or amendment (if any they have to propose), and when approved by the people, that the said congress solemnly establish the same, issue writs for convening a legislative body agreeable to said constitution, and dissolve.
One of the most interesting and emphatic of these protests developed in New York. On June 14, 1776, the "Mechanicks in Union," which appears to have been an elementary sort of trade union in New York City, addressed a memorial to the Provincial Congress against their framing and adoption of a constitution unless it should first be submitted to popular vote. They said: "We could not, we never can, believe that you intended that the future delegates or yourselves should be vested with the power of framing a new constitution for this colonly, and that its inhabitants at large should not exericse the right which God has given them, in common with all men, to judge whether it be convenient with their interest to accept or reject a constitution framed for the State of which they are members. This is the birthright of every man, to whatever State he may belong. There he is, or ought to be, by inalienable right, a colegislator with all the other members of that community. Conscious of our own want of abilities, we are, alas! but too sensible that every individual is
not qualified for assisting in the framing of a constitution. But that share of common sense which the Almighty has bountifully distributed amongst mankind in general is sufficient to quicken everyone's feeling and enable him to judge rightly what degree of safety and what advantages he is likely to enjoy, or be deprived of, under any constitution proposed to him. For this reason should a preposterous confidence in the abilities and integrity of our future delegates delude us into measures which might imply a renunciation of our inalienable right to ratify our laws, we believe that your wisdom, your patriotism, your own interest, nay, your ambition itself, would urge you to exert all the powers of persuasion you possess, and try every method which in your opinion would deter us from perpetrating that impious and frantic act of self-destruction; for as it would precipitate us into a state of absolute slavery, the lawful power which till now you have received from your constituents to be exercised over a free people would be annihilated by that unnatural act. It might probably accelerate our political death; but it must immediately cause your
In Pennsylvania, so widespread was the distrust of the assembly, at least on the part of a very large faction, that a popular movement, set on foot by the Philadelphia committee, forced the calling of a "Provincial conference" of delegates from the various city and county committee, composed of about 100 delegates, which in turn took orders for the popular election of delegates to a "Provincial convention," which was to meet "for the express purpose of forming a new government in this Province on the authority of the people only. It was this convention which framed and adopted the first constitution of Pennsylvania.
The final result was that the original or first constitutions of six of the States were framed by conventions chosen specially for that purpose. These were New Hampshire, Massachusetts, Pennsylvania, New York, Delaware, and Maryland. In four others the work was done by the provincial congress or provincial assembly, that is, the legislative body exercising the ordinary powers of government. These were New Jersey, North Carolina, South Carolina, and Georgia. In Virginia the making of the constitution was effected by a general convention, which was in the possession and exercise of all the governmental powers of the State, after the dissolution of House of Burgesses. None of these first constitutions was submitted to the popular vote, except that of Massachusetts in 1780.
In this period, so full of political interest, numerous opinions were also advanced and published in regard to the details of the constitutions which were in process of formation or about to be adopted. Their broad general outlines were not the subject of vigorous dispute, but there was much argument and polemical writing as to safeguarding popular rights and as to the distribution of powers. Writing under date of Philadelphia, November 5, 1776, John Dickinson submitted a variety of ideas. Among other things he said: "Of mixed governments, the people will naturally be inclined to that which is most like what they have always been used to, viz, a supreme executive magistrate (with a necessary check) and two orders in the body of legislation. But these orders now are to derive their authority from the people only, and in a different manner from what has been usual; it therefore requires the utmost wisdom of the legislature which is to constitute them, so to balance their powers as effectually to secure the liberty and happiness of the people forever, the sole end and purpose of their appointment.' But he added the rather surprising suggestion that the governor of each State should be appointed by the Continental Congress for a term of three years. A meeting at Annapolis sketched a plan of government for the State in 22 articles, of which the unique feature was the proposal to vest the executive power in a council of seven persons appointed annually by joint ballot of the two houses of the legislature from among their own number. It also proposed that the judges and other officers of the Province, as such, should be annually chosen by the legislature, while county officers should be elected by the people of the county.
But the detail most in dispute was the question whether the legislature of a State should consist of one or two houses. In Pennsylvania, the determination in favor of a legislative assembly of only one chamber was influenced not only by the usage under the proprietary charter, to which the people were generally well affected, but also by the personal predilection of Benjamin Franklin, who presided over the convention. But the first constitution of this State lasted only 14 years, and the bicameral system came in with the constitution of 1790. In Vermont a constitutional convention was held in June, 1777, which "did compose and agree unanimously on a constitution." This was closely modeled upon that adopted the year before in Pennsylvania, and it included Franklin's idea of a legislature of one chamber, as did also the constitution of 1786. Proposals to add a senate to Vermont's Legislature were rejected by conventions in 1793, in 1813, and in 1827, but finally adopted, by a very close vote, by a convention in 1834. The first constitution of Georgia (1777) did not provide for a true
second house or separate branch of the legislature, but for an executive council elected by the assembly from among its own members. But in 1789, Georgia's legislative system was brought into harmony with that of the other States. On the other hand, it may be mentioned that in August, 1776, William Gordon, of Roxbury, Mass., wrote a letter to "the inhabitants of the Massachusetts Bay," very strongly warning them against the danger of confiding the whole legislative power to an assembly of one chamber, telling them what the other States had done or were doing in this direction, and arguing the whole matter with much ability.
Before proceeding to consider the original State constitutions in detail, some general observations will be pertinent. In the first place, it is worth noting that, in them, the chief executive officer was quite as frequently styled "president" as "governor." Probably this was from a dislike to the use of the same term which had designated the colonial or provincial rulers sent over from England. It set a precedent for the naming of the Chief Executive of the United States. But in the State constitutions afterwards adopted the term was universally abandoned and that of "governor' substituted.
Of the four constitutions adopted before the Declaration of Independence, three were provisional or temporary. The first to come into force was that of New Hampshire, January 5, 1776. But it was "to continue during the present unhappy and unnatural contest with Great Britain." South Carolina adopted a constitution March 26, 1776, but this was in like manner established "until an accommodation between Great Britain and America can be obtained." The constitution of New Jersey, July 2, 1776, ended with a proviso as follows: "It is the true intent and meaning of this Congress that if a reconciliation between Great Britain and these colonies should take place, and the latter be taken again under the protection and government of the Crown of Britain, this charter shall be null and void, otherwise to remain firm and inviolable." But the case of Virginia was different. In its constitutional corvention, the Declaration of Rights was adopted June 12, 1776, and this included an affirmation that "The people have a right to uniform government, and therefore no government separate from, or independent of, the government of Virginia ought to be erected or established within the limits thereof." This has been regarded as a separate and absolute declaration of independence on the part of Virginia, antedating the general Declaration of the United Colonies by three weeks. The constitution or "Plan of government" of Virginia was adopted on June 29, 1776, and this declared that "the government of this country as formerly exercised under the Crown of Great Britain is totally dissolved." The constitution then adopted was described as "the future form of government of Virginia,' ," and there was no reference to a possible reconciliation with Great Britain, nor any clause showing the government as intended to be provisional. While, therefore, the constitution of New Hampshire was the first State constitution to be adopted, in point of time, that of Virginia was the first constitution set up by a State claiming to be totally independent of Britain and to possess full and sovereign powers of self-government.
The general similarity of all these early State constitutions is another circumstance worthy of remark. The ready acceptance of closely parallel institutions, formulas, and political ideas, by communities so unlike each other in the life and habits of their people and in their industrial and commercial interests, was beyond the expectation of some of the best minds of the day. In March, 1776, John Adams wrote to Horatio Gates: "All our misfortunes arise from a single cause the reluctance of the southern colonies to republican government. The success of this war depends on a skillful steerage of the political vessel. The difficulty lies in forming constitutions for particular colonies and a continental constitution for the whole; each colony should establish its own government, and then a league should be formed between them all. This can be done only on popular principles and maxims, which are so abhorrent to the inclinations of the barons of the South and the proprietary interests in the middle colonies, as well as to that avaraice of land which has made upon this continent so many votaries to Mammon, that I sometimes dread the consequences." But for once in his life Adams was due for a great surprise. Less than five months later he was writing (to his wife) with evident astonishment and genuine satisfaction: "The colonies to the south are pursuing the same maxims which have heretofore governed those to the north. In constituting their new governments, their plans are remarkably popular, more so than I could ever have imagined; and in the choice of their rulers capacity, spirit, and zeal in the cause supply the place of fortune, family, and every other consideration which used to have weight with mankind. My friend Archibald Bullock, Esq., is Governor of Georgia; John Rutledge, Esq., is Governor of South Carolina; Patrick Henry, Esq., is Governor of Virginia, etc. Dr. Franklin will be Governor of Pennsylvania. * I find, although the colonies have differed in
religion, laws, customs, and manners, yet in the great essentials of society and government they are all alike."
The early State constitutions are well worthy of careful study. For they were primary experiments on the part of a very sagacious and ingenious people in the framing of political institutions to suit and serve the ends of free popular government, and also because they furnished ideas and suggestions for the subsequent convention which wrote the Constitution of the United States. To be sure, they were not wholly made out of new cloth. The people had been used to a greater or less measure of self-government in their legislative assemblies, and the infringement of this right was one of the causes of the Revolution. But the change from government under a constitutional monarchy to government under a republic involved deep readjustments and a new orientation of ideas. Since now the people were the only source of all legitimate power, their sovereignty must be reflected in their institutions. And there must be no more tyranny-no more the tyranny of the majority than of the Crown. Knowing clearly the inherent and inalienable rights of men, and having based their cause in war upon the sacred principles of the Declaration of Independence, the men who wrote the State constitutions embodied in them the philosophy which lies at the base of all our American political thought expressed in explicit and elaborate bills of rights. It has been said: "The interesting and novel features about these new written constitutions was the fact that they rested upon the theory of popular sovereignty; the will of the people was the supreme and ultimate source of all power; from them all governments derived their powers, thus putting into immediate practical operation one plank from the platform in the Declaration of Independence. Moreover, these constitutions, resting upon the will of the people, were regarded as limitations upon the powers of the people; they were the self-imposed limits upon the powers of government. Other evidence of this attitude toward government is seen in the bills of rights, prefixed to most of these new State constitutions; they were an expression in concrete form of the inherent and inalienable rights of man, which not even a popular government could violate." (Edward Elliott, "American Government and Majority Rule," page 16.)
THE FIFTEENTH AMENDMENT-AN ACCOUNT OF ITS ENACTMENT.
[Paper read by A. Caperton Braxton, of Staunton, Va.]
The origin of negro suffrage, as a practical thing in the United States, was the act of January 8, 1867, establishing it in the District of Columbia. Whatever, in the light of thirty odd years' experimentation, may now be thought of its justice, wisdom, or beneficence, the fact is, that, until the political exigencies of the reconstruction arose, unrestricted manhood suffrage for negroes was neither accepted, nor seriously considered by the people or leading men of any State or party. The wisdom and justice of unrestricted negro enfranchisement is claimed by some to be axiomatic; but neverthe less there is not a single instance of its advocacy by even a substantial minority of the white population in any community where negroes were sufficiently numerous to make the measure more than a naked theory.
Of the 34 States forming the Union on January 1, 1861, the constitutions of 30 of them excluded negroes from the franchise. Even in the four States of Vermont, New Hampshire, Massachusetts, and New York, where negroes were nominally granted suffrage, they practically cast no vote, either because scarcely any of that race resided there, or else because they were excluded by educational or property qualifications. Of men over 20 years of age in 1860 there were in New Hampshite, 91,954 whites and 149 negroes; in Vermont, 87,462 whites and 194 negroes; in Massachusetts, 339,085 whites and 2,512 negroes; and in New York, 1,027,305 whites and 12,989 negroes.1 But as each voter in Massachusetts was required to prepay his taxes and be able to read and write, and each negro voter in New York was subject to a property qualification of $250. not applicable to the whites, the result was that, in the entire United States in 1860 there were only about 2,500 negro voters, not one of whom resided outside of New York or New England. Even in New England suffrage had never been expressly conferred upon negroes, but grew merely by implication and construction out of the broad language of their old constitutions. These constitutions (like those of several other States) were adopted at times when the idea of conferring suffrage
1 See tables in speech of Roscoe Conkling in House of Representatives, Jan. 22, 1866. Globe, p. 357. 2 Poore's Constitutions.
4 Thorp's Constitutional History of the United States, Vol. III, p. 226–227.
upon negroes as a race had never yet entered the mind of man and when free negroes were so scarce that they were no more contemplated by constitutional draftsmen than were Chinese or South Sea Islanders.
Later on the equally comprehensive suffrage laws of New Jersey, North Carolina, and Tennessee, where the population of free negroes had become no longer negligible, were promptly reworded so as to admit only white men; 5 but in New England the members of that race continued so few that it was not thought worth while to amend a constitution either to exclude or to admit them. Thus the constitutions of Maine and Rhode Island remained as much unchanged after it was found that their language excluded negroes as did those of Vermont, New Hampshire, and Massachusetts after it transpired that their language admitted them to the suffrage.
In the constitution of New York alone, of all the States up to 1868, was the negro expressly allowed to vote, but even there he was discriminated against by a heavy property qualification, not applicable to the whites, and which excluded about 90 per cent of the negro voters.7
Ignoring the enforced acquiescence of the Southern States during the reconstruction period, impartial negro suffrage, when made an issue before the people, has never obtained a majority vote in a single State of the Union save in Iowa and Minnesota during the fall of 1868,8 and at the breaking out of the Civil War in 1861 it is believed that neither under the National nor any State Government was there a single office, civil or military, filled by a negro in the United States."
This aversion of the American people to negro suffrage and office holding was almost as great as their hostility to negro slavery. From early colonial times a large portion, if not a majority, of the white people of this country have been opposed, at least in theory, to negro slavery. A majority of the States always prohibited it, and the remainder were deterred from abolishing it only because of practical difficulties. But up to the reconstruction act of March 2, 1867, the people of no single State had ever voted for impartial negro suffrage, nor had any party (including the abolitionists themselves) ever declared for it in a national platform.10 On the contrary, although in the decade immediately preceding 1867 no less than 27 of the 37 States then in the Union had amended their constitutions (many of them. in respect of suffrage), yet in no single instance was the franchise extended to negroes, but in every case where political equality for negroes had been suggested it had been voted down by decisive majorities. It must, therefore, never be supposed that the sentiment against negro slavery was by any means a sentiment in favor of negro suffrage.
Even in some of the strongest antislavery States, so decided was the sentiment against negro suffrage that no greater reproach nor more damaging charge could be brought against a public man than that he favored political equality for negroes. As far back as 1836 Abraham Lincoln was on record as opposed to negro suffrage, 12 and in his memorable series of debates with Stephen A. Douglas in 1858, in order that his strong antislavery views might not expose him to the charge of favoring the heresy of negro suffrage, he repeatedly emphasized his condemnation of it. In his first "pitched battle, as he called it, with Judge Douglas, at Ottawa, Ohio, he said: "I have no purpose to introduce political and social equality between the white and the black races. There is a physical difference between the two which, in my judgment, will probably forbid their living together upon the footing of perfect equality; and, inasmuch as it becomes a necessity that there must be a difference, I, as well as Judge Douglas, am in favor of the race to which I belong having the superior
As a sample of the careless wording of some of the suffrage clauses of the earlier constitutions, that of New Jersey gave the franchise to "all inhabitants," irrespective not only of race but of sex, and under it white women and negro men and women actually voted until it was corrected about 1807. See Poore's Constitutions, McPherson's History of the Reconstruction, p. 258, and an interesting article in the New York Tribune of April, 1867.
6 The constitutions of Maine and Rhode Island limited suffrage to "citizens of the United States." The Supreme Court of the United States in March, 1857, decided, in Scott r. Sandford (19 How. 393), that a free negro was not a citizen of the United States; but the sufrage clauses of these constitutions were allowed to remain unchanged, although Rhode Island amended its constitution in 1864 and Maine in 1865. See Poore's Constitutions. When the fifteenth amendment passed Congress, the radicals thought Rhode Island would probably reject it. See New York Tribune of Feb. 22, 1869, p. 1.
7 Thorp's Constitutional History of the United States, Vol. III, p. 227.
8 This statement ignores negro suffrage clauses in State constitutions adopted since the existence of the fifteenth amendment, which left the people no choice in the matter.
Thorp's Constitutional History of the United States, Vol. III, p. 227.
10 Even of the Abolition Party in 1840; the "Liberty Abolitionists" in 1811; the "Free Soilers," the "Abolitionists," and the "Liberty League" in 1848; the "Free Soil Democrats" in 1852 (whose national convention elected Fred Douglas himself as secretary); and the "Radical Republicans" in 1864; not one of them advocated negro suffrage in their national platforms. See McKee's National Platforms and the New York Tribune of Aug. 12, 1852.
11 Poore's Constitutions.
12 In a letter to the editor of the New Salem Journal in 1835, Lincoln declared himself in favor of female suffrage, but restricted his advocacy to the "white" race. See Lincoln's Works, Vol. I., p. 7.