1809. STATE CONSTITUTIONS. 209 framed a constitution in 1792, and revised it in convention seven years later; amendments to fundamental law have been introduced elsewhere by simpler process, however, until, in some States, the patch becomes greater than the original garment. These State constitutions, and particularly the later ones, strongly resembled one another and the Federal Constitution in leading respects. The rule laid down by Montesquieu, namely, that the three great functions, executive, legislative, and judiciary, should be kept separate, had passed into an American maxim. The Old World gave little heed to this maxim, and in colonial times both Massachusetts and Connecticut had recognized a sort of legislative court of appeals, after the English custom, whence the style of "general court" was still bestowed upon the legislature; while New York mingled the various functions much later. Each State possessed a single executive and an independent judiciary, with appellate and inferior courts, and every legislature except that of Vermont consisted of two houses. In the Southern Atlantic States, inclusive of Maryland, also in New Jersey, the State executive or governor was elected either directly or indirectly by the legislature. The other eleven States gave the choice of governor to the people. In general only a man of property was eligible to this office, or, as most constitutions expressed it, one who owned real estate, a freeholder. Qualifications of residence and age, as under the Federal Constitution, were commonly applied to the executive, as likewise with reference to legislators; and, in Massachusetts, no one but a professed Christian could be governor. The executive term, usually fixed at one or two years, extended to three years in New York, Pennsylvania, and Delaware, and in Kentucky to four. In States most under Virginian influence the tendency was to check re-eligibility, and favor circumlocution in office; a practice which had not strictly prevailed as to the President of the United States. The executive generally, but not universally, possessed the veto power; that important discretion being confided in New York to a council of revision, in which the supreme judges of the State participated. Another anomalous provision of the New York constitution we have already noticed, namely, the council of appointment, which made award of the State patronage as an irresponsible directory, often overriding the wishes of people and governor together, until finally abolished in 1823. Late constitutional changes in other States had favored rather the independence and individual responsibility of the executive, both as to the veto and appointing power. The uniform tendency of political government in these United States has been that the legislature absorbs the chief functions, and encroaches upon the other departments. Corruption and fitfulness are the great dangers to which an American legislature is exposed; and hence, fittingly, the constitutional requirement in all the States except Vermont that the legislature should consist of two houses; a provision which, to Pennsylvania and Georgia, was the fruit of experience, and which Vermont likewise adopted after a time. But as between these two houses no such solid basis of distinction could be contrived as gave symmetry to the British Parliament and the American Congress. They who sought to make the smaller house represent aristocracy, land, or wealth, found the idea too unpopular to prevail; and, accordingly, our State legislature, with its two branches, now stood for little more than a double friction upon law-making, the component of popular constituencies, one larger, the other smaller, with, perhaps, a difference in modes of choice or the length of the term of membership. The New England plan of electing senators by counties, and representatives by towns, at this time prevalent, made, perhaps, the soundest distinction practicable; but even that distinction has since been generally abandoned. As for the right of popular suffrage in the choice of executive or legislature, this had by no means been freely conceded in America as early as 1809; while, as we have seen,* the fundamental idea of the Federal Constitution was to abide by the discretion of the several States in this respect so far as national elections were concerned. They who claim that "taxation without representation" was the political wrong of the mother country against which the American Colonies re * Vol. i, p. 42. 1809. STATE REPRESENTATION. 211 belled, are in error if by this they intend that an individual or popular representation was sought in Parliament, and no rather the representation of colonies or whole communities. Unless Massachusetts as a colony was represented in laying the tax, Massachusetts as a colony ought not to be taxed; but that no one in Massachusetts should be taxed unless he had a voice in electing such a representative would have been thought an absurd claim in '75. The essential principle of deputy representation, such as prevailed in our own Continental Congress, and was claimed from Parliament as a fundamental right of British colonists liable to taxation, is as old at least as the Amphictyonic Council; whereas popular representation, or that conferred by poll suffrage, is wholly modern, and to this day finds certain limitations imposed of sex, age, and condition. State legislatures chose deputies to the Continental Congress; the Continental Congress made requisitions upon the State. Much farther removed from universal suffrage and mathematical representation, we may well conceive, was the first quarter of this century than the fourth. As for Great Britain at this time, whose colonies could never be regarded as on a par with the home population, rotten boroughs ruled the House of Commons. The French legislative corps was but an emperor's echo, like the senate of the Cæsars. Our American States had, perhaps, the purest representative systems in the world, both in theory and practice; and yet poll suffrage, a democratic idea, was coming very slowly into favor; the older constitutions conferred the franchise only on property, many of them adhering furthermore to the British idea that only landholders should vote. In South Carolina a peculiar arrangement of election districts gave the wealthy and aristocratic the decided preponderance; in scarcely more than onethird of the States, and these chiefly the new ones, all agricultural in interests, had the property qualification been so far sunk that manhood suffrage really prevailed; though in that direction was the sweep of the general current.* Religious tests, formerly so prevalent in politics, had now begun to disappear; but in the effort to reconcile bigots of the old school with modern free-thinkers, much dubious phraseol * See American Constitutions; Niles's Register, 1811. ogy was still employed on this class of legislation. The clergy were by some constitutions excluded from the State legislature; if not from office-holding altogether. Such were not the ideas dominant in New England in this respect; but peculiar disqualifications here existed, as, for instance, that of Harvard College professors, under the constitution of Massachusetts. Discriminations against free blacks, as to suffrage and officeholding, were not infrequent. In several States the Federal plan was imitated of basing the legislative representation upon a periodical census of inhabitants. Frequent elections, and frequent though short sessions of the legislature, was the American rule at this period. In New England the legislature, in both branches, and the governor, were annually chosen in the spring. Tennessee had a biennial legislature; in most other States the less numerous branch held by the longer tenure.* Although the bench furnished a spectacle by no means imposing in the newer settlements, the course of justice was respected, and the judiciary on the whole was an able, fearless, and incorruptible body of men. American talent and ambition were directed to the legal profession in preference to all others, and constituted a bar, conservative and influential, which supplied the country with both statesmen and jurists, and influenced all the great public movements. In seven States judges were appointed by the governor upon the advice and consent of a council or senate; in the others the legislature elected them. The former mode still prevailed in States having the largest cities and whose legislatures were most exposed to dangerous solicitation. In North Carolina the legislature elected upon the governor's nomination. Judicial tenure was for good behavior in eleven out of the seventeen States, as in the National Government likewise; but other States, Ohio among them, prescribed a term of years, seven being an average limit. Impeachment was the general mode of removal from office, but an obnoxious judge not amenable to such process might, in several States, Massachusetts for instance, be unseated, instead, upon concurrence of the governor and legislature. New Hampshire permitted no judge to hold office * Niles's Register, 1811. 1809. THE STATE JUDGES. 213 beyond the age of seventy, while New York disqualified at sixty; a provision later memorable from the fact that our American Blackstone composed and published his four volumes of Commentaries after he had been thus compelled to vacate the chancellorship of that State.* Hitherto English maxims of judicial independence preponderated in America, together with the body of jurisprudence. But the tenure and method of judicial appointment so readily incorporated into our national system had, during the late commotion of parties, been rudely shaken. The porcelain of the judiciary dashing upon the iron of the legislature, it fared hard with obnoxious judges; they were impeached, they were lopped off in a body by acts which professed to reorganize the courts. The sober respect of the community for justice and the laws, not their own defiant security, has ever since been the mainstay of an American judiciary; old theories of a bench superior to public clamor having seriously weakened. Nevertheless in 1809 not a State in the Union subjected its judges to the test, since so common and so fallible, of a popular election.† Two salutary constraints upon legislative tyranny under this American system were the veto power and the limitations of a written constitution. By means of the former, an executive, State or National, could defeat any new law upon which two-thirds of both houses failed to unite against him; under the latter the proper court of appeal might thwart by the machinery of justice any law which contravened in its solemn opinion the body of fundamental law. Political controversies and infringements, State and Federal, might hence cause courts of differing jurisdictions to collide with legislature or Congress or with one another; but should blind judges encroach thus upon popular liberty, these were likely to suffer in * See sketch of Chancellor Kent, United States Jurist, 1871; Niles's Register, 1811; Constitutions. † Jefferson's own views underwent considerable change upon this point of an elective judiciary. In earlier life he had favored the election of judges by the legislature, which at this period was the Virginia rule. But experience turned him against it, and in 1816 he thought executive appointment preferable; at the same time expressing himself favorable to what was then the new idea of a judiciary elected by the people. See America Law Review, October, 1873; 7 Jefferson's Works, 9. |