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By the constitution of Delaware (1776) the Senate and Assembly were to consist of freeholders, and both they and the governor (indeed, all persons admitted to public trusts) were to subscribe a profession of Christianity.
The Maryland constitution (1776) provided "that a person of wisdom, experience, and virtue, should be chosen governor," being twenty-five years of age, a resident of five years' standing," and having within the state real and personal property above the value of £5000, whereof at least £1000 to be real estate." It provided further, that senators must be twenty-five years of age, three years resident, and possessing "real and personal property above the value of £1000; while delegates to the other house of the legislature were to be twenty-one years of age, one year resident, and with property to the amount of £500 each. There was an executive council besides of "the most sensible, discreet, and experienced men," twenty-five years old, three years resident, with freeholds of £1000 value; and all these various officers were to subscribe a declaration of Christianity.
In Virginia (1776,) the Senate were required to be "resident freeholders" of the district, and of the age of twenty-five years. The other house of the legislature must be freeholders of their respective counties.
The constitution of North Carolina (1776) admitted none to be governor till he was thirty years old, five years resident, and had a freehold of £1000 value; no one to be a senator without one year's residence and £300 freehold; nor any to be of the other house without a year's residence and £100 freehold.
In South Carolina (1778) the governor was required to be a resident of ten years' standing, to have a freehold estate of £10,000, clear of debt, and to be a Protestant Christian; his council were to be of like estate and religion, with five years' residence; senators must have freeholds of the value of £2000, with actual residence; or, if non-residents, their freeholds must be £7000, and they must also be Protestant Christians; but it was enough for representatives in the Assembly, that they should be Protestants of three years' residence.
By the constitution of Georgia (1777) the governor was to have a residence of three years, and both houses of the legislature of at least one. The members of these houses were also required to be Protestant Christians, and owners of "two hundred and fifty acres of land" each, or property of some kind "to the amount of £250."
Such were the views of the early patriots, as to the kind of men who were most likely to be fit for employments of the higher political grades. They did not think it safe to repose entirely on the unassisted discretion of the people in filling such employments. The people would of course mean well, but they might act without a proper knowledge of the persons they were voting for, or might be misled. It was therefore deemed necessary to draw a line enclosing all the ground of prudent suffrage, as regarded the men to be voted for, and shutting out persons of immature age and inexperience, or who had not resided long enough in their respective neighborhoods to be generally known, or were destitute of the evidence that property gives, as well of personal virtue and intelligence, as of felt interest in the country's welfare and prosperity. Governors and senators, it was considered, should be at least from twenty-five to thirty years old, and should have been for some years established in the districts were they were candidates, so that every elector might be acquainted with their merits or demerits. Nearly all the States thought it advisable that candidates for office should also give a pledge of Christian faith, to show yet farther that they were trustworthy. And in the whole extent of the Union there was but a single State (Pennsylvania) that did not insist upon the security of a property qualification, before they would admit an individual of any name or character into the upper-provinces of the public service. For even Connecticut and Rhode Island are understood to have concurred in this rule, though under charter governments. Not that every governor, or every member of an executive council, was required in terms to be a man of property. These officers were in some cases appointed by the legislative houses; and it was then deemed sufficient to confine the express provision, as to property qualifications, to
those houses. In Pennsylvania, the pro- | fession of Christianity, with the Board of Censors, seems to have been taken as a substitute for everything else.
2. Concerning the patronage of State appointments, there has been from the first no difference of opinion in the country with regard to legislative agents. They have always been appointed by popular election. As to executive agents, (in the political department as distinguished from that of the courts,) there has not been the same unanimity; but in early times the appointment was for the most part devolved upon the legislative houses. This was done in New Jersey, Pennsylvania, Delaware, Maryland, and several other States, under the primary constitutions. Which is the better way, so far as regards the well filling of the executive chair, is perhaps doubtful; but the people may think it a point of liberty to choose their own chief magistrate, as well as their law-makers, and no serious objection seems to be in the way.
could form no just conception of them. At the same time the judicial office was not political in the vulgar sense of the term, and there was nothing to fear from it in the way of political mischief. Sufficient reasons, one would think, for placing so important a trust of patronage in the hands best capable of discharging it well.
In like manner the great mass of inferior civil offices were also left by the people to be filled by persons in the government, more competent to the duty than themselves.* Attorneys general, solicitors general, surveyors general, secretaries, treasurers, controllers, surrogates, justices of the peace, sheriffs, coroners, and a fry of others, all had their appointments at second-hand, from public agents of the people. It saved the people trouble, and it promoted their interests, without a particle of danger to liberty in any quar
At any rate, such was the policy of those times. Indeed, not only civil functionaries were appointed in this manner, but general and field officers of militia likewise.
The truth is, liberty has no concern in the matter, beyond the choice of the two legislative houses. To control the head is to control the body. Enough for the people at all events, to have both the legislature and the chief executive directdependent on their votes.
Next in order are the judges. Who shall appoint them? The early constitutions say, not the people, but the more prominent ministers of the political government whom the people elect, that is, the governor and senate, or the two legislative houses, with or without the governor's concurrence. In New Hampshirely 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 adgovernor, "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, the same; in South Carolina, the same; in Georgia, as I apprehend, (though the constitution is not explicit,) the same. Thus the notion of an election of judges by the people was unheard of. Judicial qualifications were peculiar. The people,
VOL. IV. NO. I. NEW SERIES.
of "Researches" that lately fell under my obser"En Virginie," says an old writer in a book vation, "le peuple ne s'est pas réservé d'autre election que celle du corps législatif; car il est persuadé, et je crois avec raison, que la masse
des habitans d'un grand état ne peut connaître le mérite particulier des personnes les plus propres à remplir les fonctions des differentes charges."
houses for future use. It is a naked act, which nothing but a constitution of government can put in any man's power, and of which the power cannot even come from thence but upon a trust that does not permit it to rest in the receiver as his own. He is, therefore, a trusted agent in the whole matter. He fills an office, which his country honors him with, not for his benefit in particular, but for hers in general. So that claims to the franchise are quite out of the question. And the pretense, so often and so childishly uttered during the progress of our history, that such and such a man was entitled to be a voter, or that he ought in justice to be one, though not legally qualified, is strangely futile.
the county where he used his privilege) in the shape of property. Generally speaking, this stake must be a freehold, though the alternation of personal estate was deemed admissible in some places. With the single exception, I believe, of Pennsylvania, the whole Union was of one mind as to this characteristic circumstance, of holding a property qualification indispensable. Even Rhode Island and Connecticut, under their colonial charters, concurred in it. The amounts specified were different in different places, and each State had its own form of words to express the intent. I have not the New Hampshire constitution of 1783 now before me.
In Massachusetts, the rule was,
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-holders should be allowed to vote, alments of the different States upon the sub- 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. munity, ought to have a right of sufNot that younger persons might not often frage;" which right was thereupon given bo 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 rule existed. In South Carolina, “every
free white man, who acknowledged the being of a God, and believed in a future state of rewards and punishments," and who also " had a freehold of at least fifty acres of land, or a town lot, and had been been legally seised and possessed of the same for six months previous to the election" when he claimed bis franchise, "or had paid a tax the preceding year, or was taxable the present year, at least six months previous to such election, in a sum equal to the tax on fifty acres of land," was held a duly qualified elector. And in Georgia, a man was such an elector, who was of lawful age and had resided six months in the State, provided he was "possessed, in his own right, of ten pounds value, and liable to pay tax in the State, or was of any mechanic trade." Such are all the facts of the case in this aspect of it.
Not only therefore was it deemed expedient to have men of property to represent the people of the States in their local governments, but even the electoral franchise was regarded unsafe in the hands of any but citizens of some little substance. And though the rule of looking to property qualifications for the safe vesting of this franchise, must of course have often shut out wise and meritorious persons from the trust it involved, that evil was supposed to be doubly compensated by the concurrent good, of excluding a much greater number of dependent, vagrant, profligate individuals along with them. So at any rate the fathers judged; and the matter was all important. Beyond a question, the character of our electorships is vital to the country's hopes. There may be other things that are thus vital; this is not the less so. Few communities upon earth are capable of self-government. Why? Because they have not the material for sound electorships. The grand secret lies here. And will it be doubted that there was in the early population of this country a very considerable mixture of corrupt ingredients? or that electoral corruption was as dangerous in America as elsewhere? What alternative then but to vest the sovereignty of the polls in the hands of the better sort if possible? I stay not now to vindicate the means employed for the purpose; but was not the purpose right? Nay more, was not the means, however
unreasonable in the eyes of later politicians, effectual to a good degree in matter of historical fact?
4. The terms and tenures of official life, as settled by the first lawgivers, come next before us. It will be sufficient for the object in view, to consider the subject in the three instances of governors, senators, and judges. Members of the lower house of the legislature hold almost universally for a single year only.
By the first regular constitution of NewHampshire, the governor and senate were to be chosen annually, but judges were to hold their offices "during good behavior." In Massachusetts, just the same. In New York, the governor's term was fixed at three years, that of senators at four, and the judicial tenure was by good behavior, determinable at the age of sixty years. In New Jersey, the governor and senate were to be annually chosen, and the term of the judges was to seven years. In Pennsylvania, the governor's term was one year, senators were to hold for three years, and judges for seven. In Delaware, the governor's term was three that of senators three, and that of the judges during good behavior. In Maryland, the governor held for one year only, senators for five, and judges (as also the attorney general) during good behavior. In Virginia, the governor was chosen for three years, the senate for one, and judges held for life or good behavior. In North Carolina, the terms of the governor and senators were one year only, those of the judges during good behavior. In South Carolina, the governor and both houses of the legislature were appointed biennially, the judges during good behavior. By the Georgia constitution, the governor and senate were to hold for one year, but the tenure of the judicial office was not specified in that instrument. In brief, three governors held for three years each, one for two, and the rest for one; there was one senatorial term of five years, one of four, two of three, one of two, and six of but one; and of the eleven regularly formed States, eight put their judges upon a tenure of good behavior, two gave them terms of seven years, and as to the remaining one, the constitution is inexplicit. So that we may fairly say the sentiment of the country was divided between one and
three years as regarded the proper term | to "every other foreign power whatsoever, for a chief magistrate, between one and political or ecclesiastical." five years for the senatorial office, while in reference to judges it was nearly unanimous in favor of life terms, with a tenure of good behavior.
5. There is scarce room for further particulars of the conservative policy of the fathers, in regard to public power and the dangers attending it. I will barely touch upon a few.
I remark further, as not undeserving of notice, the negative fact that written bills of rights were not as common once as they are now. Massachusetts, Pennsylvania, Delaware, Maryland, and North Carolira (five out of thirteen) had them; the other eight had them not, and yet contrived to get on as well as their neighbors, and to keep as clear probably of all manner of oppression.
I mention also, in this connection, that momentous subject, the common law, the largest, most enduring, best bill of rights, that can possibly be imagined. It is the largest, because including all the rights that ever were enumerated in a written document, and a great many more; the most enduring, because incorporated with the intelligent moral sense of the people, and so living in their spiritual life; the best, because the best known, the most available, the truest to nature, and the readiest in practice. Would to heaven the
And first, religion-the pure principles of evangelical Christianity; of which near all the primary States made striking recognition, and even insisted upon it, as a condition of eligibility to office, that their servants in political life should do the same. The people required that evidence, along with others, that the men they voted for were honest and would be faithful. Massachusetts, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, and Georgia, seven States of the regularly constituted eleven, were imperative in this, and others went close to the mark. Sects and establishments were out of the ques-people felt as they ought, the importance tion. Christianity in general, the religion of the country's morals, was the thing they wanted. The only doubt is, whether it was possible to make sure of the object in that way.
Again, it was specially inserted in numbers of those early constitutions, that persons selected to administer the government, must be "wise, virtuous, discreet" men, "men of experience," the best that could be found. The same object was in view here as before. And two things are, I think, implied: one, that of all safeguards against abuse, the solid worth of those who were to have the power of committing it, was most to be relied on; the other, that in taking such pains to bring men of great personal fitness and competency into public life, it was intended that they should use the power of their stations according to their own judgment and discretion, undisturbed from any quarter. Persons of such eminent qualities could not be wanted for electoral tools.
Thirdly, various oaths were also required to be taken by the officers of government; especially, an oath of fidelity and an oath of allegiance to the State. To which in some cases was added, an oath of abjuration, not only as to Great Britain, but as
of the common law to their great interest, their liberty. Numbers of the primary constitutions put in strong language the right of all men to enjoy forever this portion of their civil economy. There were no prejudices against it in those days. On the contrary, it and liberty were regarded as twin beings; born together, bred together, and holding on their way together, in indissoluble fraternity.
One other particular shall close the list. The amending of constitutions has become a vast business in our time. The fathers neither intended nor foresaw this. As to conventions for the purpose, only three of the States, Massachusetts, Pennsylvania, and Georgia, hinted at such a thing. Massachusetts, making a new experiment in the art of policy, thought prudent to say, "that the General Court which should be in A. D. 1795, should issue precepts" for taking the sense of the people "on the necessity or expediency of revising the constitution." And "if it should appear that two-thirds of the qualified voters throughout the State were in favor of such revision," a convention might be called. In Pennsylvania, the strange topic of the Council of Censors seems to have suggested the thought of placing an equally