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represent the people of their respective | have they not done it for their own adStates only. The laws of the two econo- vantage exclusively? And so to every mies differ in like manner. They differ beneficial purpose, they are grantees also. also in settled declarative rank; for the And then the supposed reason, on the Constitution, treaties and statutes of the one hand, for interpreting their grants United States are, upon the very highest with rigor, is counterbalanced by evidence, the supreme laws of the land. of equal force on the other, for a liberal In which respect the laws of the States and generous construction of them, to the must be subordinate. Mr. Jefferson re- end that the people's settlement thus made garded the States themselves as “subordi- upon themselves, (the language is profesnate governments,” and so called them.* sional but descriptive and true,) may not
I am not in the habit of consulting this be disappointed. The principle is one of gentleman's political philosophy, but his equitable common law. And it is the views upon the present point are too dis- principle which ought to govern in the tinctly stated in some of his letters to leave Take an instance; as whether the me an apology for passing them by en-general government, under a power tirely. We should marshal our govern- granted in broad terms for regulating ment,” he says in one of these letters, commerce, can by implication set up a “into 1st, the general federal republic, for banking institution. A very rigid conconcerns foreign and federal; 2d, that of struction might bar the means, however the Stales, for what relates to its own desirable the end ; whereas, a liberal one cilizens exclusively; 3d, the county re- implies the power of the means for the publics, for the duties and concerns of the end's sake. And so of other particulars. counties, and 4th, the ward republics, for Ought not powers granted by the people the small and yet numerous and interesting in trust for a service of their own interests, concerns of the neighborhood.”! Accord - to be made the most of that the terms of ing to him, the question of subordination grant allow, for the advancement of those is quite unembarrassed. Let the States interests ? Common sense answers yes. enjoy their powers to the uttermost; but let The common law answers yes. And this, not their politicians be foolish on the sub- in the pure virgin period of our politics, ject.
was the acknowledged rule of the governA good deal depends upon the rule of ment. construction to be applied to the special In a word, the government was then grants of power by which the officers of regarded not only as a whole with sepathe federal economy have been endowed. rately organized parts, but a whole of Some will have it that they must be taken which the general and particular econostrictly. This, however, is a compara- mies were in harmony with each other ; tively modern notion, and of party origin. being alike popular in design, alike entiThe founders and their immediate suc- tled to respect and favor in the construccessors thought otherwise. It is true, the tion of the powers assigned to them. The powers not granted are retained by the days of feud in the political family of head people. And there needed no record of and members, had not yet come; the the fact to show it. But how does that days of stinting rigor towards the powers of affect the meaning of the actual grants ? | the head, and of comparative indulgence to And why are these to be narrowed down those of the members, were not foreseen, to limits less than a fair liberal criticism were not expected to come. The federal would assign to them? Is it because the jurisdiction was indeed limited in extent, people are the grantors ? Nay, but for because the interior administration of the whose benefit ? Admit the people have country was in great measure withheld raised the trusts of all federal officers; from it; and so was the jurisdiction of
the States limited, because the entirety of
“ foreign and federal” affairs (to use a * 2 Writ. 442. + I have lost my reference for this passage, yond its reach; but neither the one juris
phrase of Mr. Jefferson's) was placed beand have not the book at hand. The words are taken from the published writings of Mr. Jeffer- diction nor the other was the less esteem
ed for its limit's sake, nor were these lim
its straitened at all, on either hand, by £500, half freehold, and a professor of narrow-minded jealousy or fear. Every- the Protestant religion ; that senators where the object in view was public, pop- (who must be thirty years of age) should ular, beneficial. Everywhere the rule of in- also be inhabitants of seven years' standterpretation was liberalized by that object. ing, have freeholds of £200 value, and be
As, therefore, the agencies of public of the Protestant religion; and that replife were not to be throttled, in order to resentatives in the lower house of the legkeeping them out of mischief, we may islature, should be residents of two years' now advance a step further and inquire as standing, have property equal to £100 in to the measures actually resorted to for value, half freehold, and profess the same securing that end.
religion. And here we approach those smaller By the constitution of Massachusetts details of the system which, however ma- |(1780) the governor was required to have terial to the plan and policy of its found- a seven years' residence, and a freehold of ers, and however anxiously adjusted by £1000; a senator's residence must be them in the first instance, have either tive years at least, with a freehold of been looked upon by later lawgivers as £300, or a personal estate of £600; a too insignificant for a question, when the representative in the Assembly, with one spirit of meddling was abroad, or too year's residence, must have a freehold of clearly amiss to leave that spirit unpro- £100, or a £200 taxable estate of some voked; for they have been the chief sub- kind; and governor, senator, and repreject of what are termed our modern con- sentative must all make oath that they stitutional reforms.
were believers in Christianity. They belong mainly, it will be seen, to the The constitution of New York (1777) state economies, (of which at the time the required the governor to be of three years' Union was formed there were thirteen,) and residence, and “a wise and discreet freerelate, first, to the character and circumstan- bolder;" the senators were also to be ces by which it was supposed that candi- “ freeholders chosen out of the body of dates for office ought to be distinguished; the freeholders.” Nothing special as to secondly, to the mode of appointment deem- the other house. ed most likely to secure a fair result; third- In New Jersey, by the constitution of ly, to the qualifications of electors where the 1776, the Senate (then called “the Legisclection was popular; fourthly, to the lative Council") was to consist of persons term and tenure of office when attained ; who had been for one year residents, and lastly, to some further means of “and worth at least £1000 proclamation safety, calculated either to fortify the per- money;" members of Assembly with the sonal virtue and fidelity of the functionary same length of residence, must be “worth in the execution of his trust, or to guard £500 proclamation money." against evil from his misconduct in it. In Pennsylvania (1776) it was provided
Two of the primary States (Connecticut | that members of Assembly should be men and Rhode Island) having continued to who had resided in their respective counact under their colonial charter until long ties for two years, and that they should after the final settlement of our national make oath to their belief in God's governpolity, the evidence of what the sentiment ment, and in the divine authenticity of the of the country was in general, upon mat- Holy Scriptures. No similar provision as ters of conservative policy. such as are to other branches of the government, and here referred to, must be taken from the no property qualification beyond that of early constitutions of the other eleven. having paid taxes. There was, however,
1. I begin with the conditions of eligi- to be in this State a Council of Censors, bility to the higher stations of the State chosen every seven years, to inquire governments as shown by that evidence. whether the Constitution had been violated,
The first regular constitution of New and whether either the legislative or exHampshire, (adopted in 1783,) required ecutive branch of the government had that the governor, to be properly eligible been guilty of usurpation; with power as such, should be an inhabitant of seven also, if need be, to call a convention for years' standing, possessed of an estate of reform.
By the constitution of Delaware (1776) By the constitution of Georgia (1777) the Senate and Assembly were to consist the governor was to have a residence of of freeholders, and both they and the three years, and both houses of the legisgovernor (indeed, all persons admitted to lature of at least one. The members of public trusts) were to subscribe a pro- these houses were also required to be fession of Christianity.
Protestant Christians, and owners of “two The Maryland constitution (1776) pro- hundred and fifty acres of land ” each, or vided “that a person of wisdom, expe- property of some kind “ to the amount of rience, and virtue, should be chosen gov- £250." ernor,” being twenty-five years of age, a Such were the views of the early patresident of five years' standing, “and hav- riots, as to the kind of men who were most ing within the state real and personal likely to be fit for employments of the property above the value of £5000, where - higher political grades. They did not think of at least £1000 to be real estate.” It it safe to repose entirely on the unassisted provided further, that senators must be discretion of the people in filling such emtwenty-five years of age, three years re- ployments. The people would of course sident, and possessing “real and personal mean well, but they might act without a property above the value of £1000; proper knowledge of the persons they while delegates to the other house of the were voting for, or might be misled. It legislature were to be twenty-one years was therefore deemed necessary to draw of age, one year resident, and with pro- a line enclosing all the ground of prudent perty to the amount of £500 each. There suffrage, as regarded the men to be voted was an executive council besides of “the for, and shutting out persons of immature most sensible, discreet, and experienced age and inexperience, or who had not remen,” twenty-five years old, three years sided long enough in their respective resident, with freeholds of £1000 value; neighborhoods to be generally known, or and all these various officers were to sub- were destitute of the evidence that propscribe a declaration of Christianity. erty gives, as well of personal virtue and
In Virginia (1776,) the Senate were intelligence, as of felt interest in the counrequired to be « resident freeholders” of try's welfare and prosperity. Governors the district, and of the age of twenty-five and senators, it was considered, should be years. The other house of the legisla- at least from twenty-five to thirty years ture must be freeholders of their respective old, and should have been for some years counties.
established in the districts were they were The constitution of North Carolina candidates, so that every elector might be (1776) admitted none to be
till acquainted with their merits or demerits. he was thirty years old, five years re- Nearly all the States thought it advisable sident, and had a freehold of £1000 value; that candidates for office should also give no one to be a senator without one year's a pledge of Christian faith, to show yet residence and £300 freehold; nor any farther that they were trustworthy. And to be of the other house without a year's in the whole extent of the Union there was residence and £100 freehold.
but a single State (Pennsylvania) that did In South Carolina (1778) the governor not insist upon the security of a property was required to be a resident of ten years' qualification, before they would admit an standing, to have a freehold estate of individual of any name or character into £10,000, clear of debt, and to be a Pro- the upper provinces of the public service. testant Christian; his council were to be of For even Connecticut and Rhode Island like estate and religion, with five years' resi- are understood to have concurred in this dence; senators must have freeholds of rule, though under charter governments. the value of £2000, with actual residence; Not that every governor, or every member or, if non-residents, their freeholds must of an executive council, was required in be £7000, and they must also be Protest- terms to be a man of property. These ant Christians; but it was enough for re- officers were in some cases appointed by presentatives in the Assembly, that they the legislative houses; and it was then should be Protestants of three years' re- deemed sufficient to confine the express sidence.
provision, as to property qualifications, to
those houses. In Pennsylvania, the pro- could form no just conception of them. fession of Christianity, with the Board of At the same time the judicial office was Censors, seems to have been taken as a not political in the vulgar sense of the substitute for everything else.
term, and there was nothing to fear from 2. Concerning the patronage of State it in the way of political mischief. Sufappointments, there has been from the ficient reasons, cne would think, for placing first no difference of opinion in the coun- so important a trust of patronage in the try with regard to legislative agents. They hands best capable of discharging it well. have always been appointed by popular In like manner the great mass of inferior election. As to executive agents, (in the civil offices were also left by the people to political department distinguished be filled by persons in the government, from that of the courts,) there has not more competent to the duty than thembeen the same unanimity; but in early selves.* Attorneys general, solicitors times the appointment was for the most general, surveyors general, secretaries, part devolved upon the legislative houses.
the legislative houses. treasurers, controllers, surrogates, justices This was done in New Jersey, Pennsyl- of the peace, sheriffs, coroners, and a fry vania, Delaware, Maryland, and several of others, all had their appointments at other States, under the primary constitu- second-hand, from public agents of the tions. Which is the better way, so far as people. It saved the people trouble, regards the well filling of the executive and it promoted their interests, without a chair, is perhaps doubtful; but the people particle of danger to liberty in any quarmay think it a point of liberty to choose ter. At any rate, such was the policy their own chief magistrate, as well as their of those times. Indeed, not only civil law-makers, and no serious objection seems functionaries were appointed in this manto be in the way.
ner, but general and field officers of Next in order are the judges. Who militia likewise. shall appoint them? The early constitu- The truth is, liberty has no concern tions say, not the people, but the more in the matter, beyond the choice of the prominent ministers of the political govern- two legislative houses. To control the ment whom the people elect, that is, the head is to control the body. Enough for governor and senate, or the two legis- the people at all events, to have both the lative houses, with or without the gov- legislature and the chief executive directernor's concurrence. In New Hampshire ly dependent on their votes. the two houses did it under the first organ- 3. But who of the great popular mass izing act of 1776, and the governor and were to be personally the electors of the council under the constitution of 1783. chief magistrate and the legislature ? In Massachusetts it was done by the for all could not be indiscriminately ad
overnor, "by and with the advice and mitted to that perilous function. Some consent" of the executive council. In were insane, and some were desperately New York there was a special council of wicked; some would sell their votes, and four senators, for the sole purpose of ex- some their country, if they could. Voting ercising the appointing power, and judicial is an intelligent act, or ought to be ; and appointments were made by the governor, it is a most responsible moral act. Ob“by and with their advice and consent.' serve, it is of no value by itself to the In New Jersey the two houses chose the performer. It gives him no pleasure; is judges; in Pennsylvania, the governor not of the nature of property ; labor canand council; in Delaware, the governor not take it for wages; hunger cannot feed and assembly; in Maryland, the gover- upon it; wealth cannot lay it up in storenor and council; in Virginia, the two houses on joint ballot; in North Carolina, of “Researches” that lately fell under my obser
* “ En Virginie,” says an old writer in a book the same; in South Carolina, the same; vation, “ le peuple ne s'est pas réservé d'autre in Georgia, as I apprehend, (though the election que celle du corps législatif; car il est constitution is not explicit,) the same. persuadé, et je crois avec raison, que la masse Thus the notion of an election of judges le mérite particulier des personnes les plus
des habitans d'un grand état ne peut connaître by the people was unheard of. Judicial
propres à remplir les fonctions des differentes qualifications were peculiar. The people, charges." VOL. IV.
houses for future use. It is a naked act, the county where he used his privilege) which nothing but a constitution of gov- in the shape of properly.
Generally ernment can put
power, and speaking, this stake must be a freehold, of which the power cannot even come though the alternation of personal estate from thence but upon a trust that does was deemed admissible in some places. not permit it to rest in the receiver as his With the single exception, I believe, of
He is, therefore, a trusted agent Pennsylvania, the whole Union was of one in the whole matter. He fills an office, mind as to this characteristic circumwhich his country honors him with, not stance, of holding a properly qualification for his benefit in particular, but for hers in indispensable. Even Rhode Island and general. So that claims to the franchise Connecticut, under their colonial charters, are quite out of the question. And the concurred in it. The amounts specified pretense, so often and so childishly utter- were different in different places, and each ed during the progress of our history, State had its own form of words to exthat such and such a man was entitled to press the intent. I have not the New be a voter, or that he ought in justice to Hampshire constitution of 1783 now bebe one, though not legally qualified, is fore me. In Massachusetts, the rule was, strangely futile.
“a freehold estate within the commonWell, then, the fathers had a right to wealth, of the annual income of three do as in their judgment the well-being pounds, or any estate of the value of of the country required. And acting on sixty pounds.' In New York, it was this principle, they gave the franchise of “a freehold of the value of twenty pounds the polls, not to everybody, nor to the half, within the county," or a leasehold " of or even a fourth part, of the popular the yearly value of forty shillings," promultitude, but only to persons answering vided the voter should also “ have been a particular description, which it was rated and actually paid taxes to the hoped might include the best informed State.” In New Jersey, “fifty pounds and most virtuous and independent por- proclamation money
was to be the tion of society, while it would shut out measure of competency. In Pennsylpersons of a less enlightened or less reli- vania, to have paid taxes was enough, able character,
provided always that the sons of freeThere was some vanity in the arrange- 1 holders should be allowed to vote, alments of the different States upon the sub- 1 though they had not paid taxes."
This ject. They were uniform in principle, was shaving close. By the constitution however, with not more than one excep- of Maryland it was declared, “that every tion that I know of, in a point of conse- man having property in, a common interquence. The age of competency for est with, and attachment to the comvoting was fixed at twenty-one years. muoity, ought to have a right of sufNot that younger persons might not often frage;" which right was thereupon given be possessed of the requisite knowledge to actual residents, “having freeholds of and judgment for the purpose, but be five acres of land" in their respective cause the majority of minors would not counties, or possessing “ property in the be likely to possess them, and a general state above the value of thirty pounds, rule was necessary. The condition of a connected with a county residence of short local residence was imposed, say one whole year next preceding the elecfrom six to twelve months. Not that tion” in which they might claim a sufpersons from beyond the county line frage. Virginia is understood to have would in all cases be deficient in intelli- agreed in practice with the other States, gence
and trustworthiness for the duty, but the constitution merely says the right but because it was thought best in gen- of suffrage is “ to remain as at present, " eral that they should know and be known and I have not found the law containing in the neighborhood. And what is the particulars. In North Carolina, the more remarkable, there was a further vote for senators depended on “ a freecondition added, to the effect that every hold of fifty acres of land," while as to elector must have a stake in the country members of the other house no similar (and for the most part it must lie within 4 rule existed. In South Carolina, “erery