XV. 1776 1783. CHAP. ture with two branches. But the Americans of that day neither listened to the theories of Franklin, nor to the lessons from history of John Adams; finding themselves accustomed almost from the beginning to a double legislative body, eleven of the thirteen states adhered to the ancient usage. In constructing the coördinate branch of the legislature, they sought to impart greater weight to their system and to secure its conservation. This branch, whether called a senate, or legislative council, or board of assistants, was less numerous than the house of rep resentatives. In the permanent constitutions of Massachusetts and New Hampshire, the proportion of public taxes paid by a district was regarded in the assignment of its senatorial number; in New York and North Carolina, the senate was elected by a narrower constituency than the assembly. In six of the eleven states the senate was chosen annually; but the period of service in South Carolina embraced two years, in Delaware three, in New York and Virginia four, in Maryland five. To increase the dignity and fixedness of the body, Virginia, New York, and Delaware gave it permanence by renewing, the first two one fourth, Delaware one third, of its members annually. Maryland, which of all the states showed the strongest desire to preserve political importance to the large proprietors of land, prescribed a double election for its senate. Once in five years the several counties, the city of Annapolis, and Baltimore town, chose, viva voce, their respective delegates to an electoral body, each member of which was "to have in the state real or personal property above the value of five hun XV. 1776 1783. dred pounds current money." These electors were CHAP. to elect by ballot "six out of the gentlemen residents of the eastern shore," and "nine out of the gentlemen residents of the western shore" of the Chesapeake bay; the fifteen "gentlemen thus chosen constituted the the quinquennial senate of Maryland, and themselves filled up any vacancy that might occur in their number during their term of five years. This is the most deliberate measure which was devised to curb or balance popular power, and marks the reluctance with which its authors parted from their institutions under the crown of England. Each state had its governor or president, as in the days of monarchy; but the source of his appointment was changed, and his powers abridged. In the four New England states he was chosen directly by all the primary electors, which is the safest way in a republic; in New York, by the freeholders who possessed freeholds of the value of two hundred and fifty dollars; in Georgia, by the representatives of the people; in Pennsylvania, by the joint vote of the council and assembly, who were confined in their selection to the members of the council; in the other six states, by the joint ballot of the two branches of the legislature. Except in Pennsylvania, a small property qualification was usually required of a representative; more, of a senator; most, of a governor. New York required only that its governor should be a freeholder; Massachusetts, that his freehold should be of the value of about thirty-three hundred dollars; New Hampshire required but half as XV. CHAP. much; South Carolina, that his plantation or freehold, counting the slaves "settled" upon it, should 1776- be of the value of forty-two thousand eight hundred dollars in currency. 1783. In New York and Delaware the governor was chosen for three years; in South Carolina for two; in all the rest for only one. South of New Jersey the capacity of reëlection was left unrestricted; in those states which were most republican there was no such restriction; in Massachusetts, Connecticut, and Rhode Island, a governor was often reëlected for a long succession of years. In the declaration of independence, the king was complained of for having refused his assent to wholesome laws: the jealousy fostered by long conflicts with the crown led to the general refusal of a negative power to the governor. The thoughtful men who devised the constitution of New York established the principle of a conditional veto; a law might be negatived, and the veto was final, unless it should be passed again by a majority of two thirds of each of the two branches. New York unwisely confided the negative power to a council, of which the governor formed but one; Massachusetts in 1779 improved upon the precedent, and placed the conditional veto in the hands of the governor alone. In her provisional form South Carolina clothed her executive chief with a veto power; but in the constitution of 1778 it was abrogated. In all the other colonies the governor either had no share in making laws, or had only a casting vote, or at most a double vote in the least numerous of the two branches. XV. 1776 The legislative branch was the centre of the sys- CHAP. tem; nowhere had the governor power to dissolve the legislature, or either branch of it, and so appeal 1783. directly to the people; and on the other hand, the governor, once elected, could not be removed during his term of office except by impeachment. In most of the states, all important civil and military officers were elected by the legislature. The scanty power intrusted to a governor, wherever his power was more than a shadow, was still further restrained by an executive council, formed partly after the model of the British privy council, and partly after colonial precedents. In the few states in which the governor had the nomination of officers, particularly in Massachusetts and New Hampshire, they could be commissioned only with the consent of council. In New York, the appointing power, when the constitution did not direct otherwise, was confided to the governor and a council of four senators, elected by the assembly from the four great districts of the state; and in this body the governor had "a casting voice, but no other vote." This worst arrangement of all, so sure to promote faction and intrigue, was the fruit of the deliberate judgment of wise and disinterested statesmen, in their zeal for securing administrative purity. Whatever sprung readily from the condition and intelligence of the people, had enduring life; while artificial arrangements, like this of the council of appointment in New York and like the senate of Maryland, though devised by earnest statesmen of careful education and great endowments, pined from their birth, and soon died away. XV. 1783. CHAP. The third great branch of government was in theory kept distinct from the other two. In Con1776- necticut and Rhode Island, some judicial powers were exercised by the governor and assistants; the other courts were constituted by the two branches of the legislature. In Massachusetts and New Hampshire, the governor, with the consent of council, selected the judges; in New York, the council of appointment; but for the most part they were chosen by the legislature. In South Carolina, Massachusetts, and New Hampshire, a judge might be removed, as in England, upon the address of both houses of the legislature, and this proved the wisest practical rule; in New York he must retire at the age of sixty; in New Jersey and Pennsylvania the supreme court was chosen for seven years, in Connecticut and Rhode Island for but one; in Delaware, Maryland, Virginia, and North Carolina, the tenure of the judicial office was good behavior; in Maryland, even a conviction in a court of law was required before removal. Powers of chancery belonged to the legis lature in Connecticut and Rhode Island; in South Carolina, to the lieutenant-governor and the privy council; in New Jersey, the governor and council were the court of appeals in the last resort. The courts were open to all, without regard to creed or race. The constitution of Massachusetts required a system of universal public education as a vital element in the state. The measure was a bequest from their fathers, endeared by a long experience of its benefits, and supported by the reflective |