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THE FIRST STATE CONSTITUTIONS.
The exalted place which Americans have been accustomed to assign to the Federal Constitution-while contributing to a patriotic appreciation of our general government-has tended somewhat to obscure the great significance which our State constitutions possess, not only as integral elements of our federal system, but especially as factors in the growth of American constitutional law. When the average American thinks of the constitutional law of his country his mind naturally reverts to the written document drawn up by the convention of 1787, and put into practical force at the inauguration of Washington. He is inclined to forget that when our Fathers met together in Philadelphia to "form a more perfect union," they had already before their eyes the written constitutions of thirteen independent States. would be inclined to question the statement that the most eventful constitution-making epoch in our history was not the year 1787, but an antecedent period extending from 1776 to 1780. While absorbed in the study of the Revolution as
a movement preparatory to the formation of the Federal Union, he may not have fully appreciated the fact that before the surrender of Cornwallis at Yorktown, every American State had already achieved its constitutional independence and had established its own organic law, by which it should not only remain free from the foreign dominion of Great Britain, but should also remain an indestructible unit in the American federal system.
The chief historical significance which attaches to the first State constitutions rests in the fact that they were the connecting links between the previous organic law of the colonies and the subsequent organic law of the Federal Union. They grew out of the colonial constitutions; and they formed the basis of the Federal Constitution, and furnished the chief materials from which that later instrument was derived. In a previous paper* published in this journal it was claimed that the real continuity in the growth of American constitutional law could be seen only by tracing: first, how the charters of the English trading companies were transformed into the organic laws of the early colonies; second, how the organic laws of the colonies were translated into the constitutions of the original States; and, finally, how the original State constitutions contributed to the Constitution of the Federal Union. In the paper
referred to the attempt was made to illustrate the first of these stages of growth. It is the purpose of the present paper to illustrate the second stage, namely, the transition from the colonial to the State constitutions.
In tracing the growth of a political system like that of the American States it is often difficult to separate those elements which are consciously derived from a foreign source, and those which are the result of a rational adjustment of means to ends, and which may thus be regarded as original. And it is also often difficult to distinguish both of these elements from those which are the unconscious result of inherited "Genesis of a Written Constitution," ANNALS OF THE AMERICAN ACADEMY, Vol. I., p. 529, April, 1891.
political instincts. Often these elements are mixed, being partly derived and partly original, as when an old institution is transformed to meet new emergencies. Often, too, an institution may appear to be the result of direct imitation, when in fact it may be the product of a common race instinct, as in the case of the representative system reproducing itself in all the branches of the Teutonic race. It is also no doubt true that heredity and reason may contribute their influences in the formation of a political institution. The law of historical continuity, or political inheritance, is not inconsistent with the law of historical variation, or political originality. In fact, the greater the accumulations of past experiences, the greater will be the capacity to solve by original methods the problems presented by new experiences. It is therefore folly to suppose that all the elements which enter into the American political system are merely the reproductions or imitations of any foreign models. The American colonists inherited the instincts of the English But under new circumstances they were called upon to work out problems which were peculiar to their own political life; and as a consequence of this we find that the constitutional system which grew up on this continent was an American and not a European product. Even those institutions which seem to have a general similarity to those which are foreign have here acquired specific characteristics which distinguish them from those belonging to any foreign country. It is only by studying the circumstances in which any institution, or set of institutions, has taken its rise that we can hope to form an intelligent judgment as to the extent to which it is the result of direct imitation, and the extent to which it is the special product of the time and the place in which it makes its appearance. To suppose that the American constitutional system has been exclusively derived from an English, or a Dutch, or any other foreign source, would be to ignore the political sagacity which the American people have shown from the first, both in the adaptation of foreign
institutions and in the development of new constitutional features to meet the peculiar circumstances in which they have been placed.
In taking a rapid survey of the mode in which the American colonies grew into the American States it will, of course, be possible to consider only the most general and essential features of the political system, as shown in the growth of the legislative, judicial and executive branches of the government. As we trace the various political institutions of the American colonies back to a common source we find that they were in the first instance derived from certain powers delegated by the English crown and embodied in charters granted to trading companies or proprietors. The first colonies, whether they were established by the authority of their superiors, or whether they were organized by their own independent efforts, acquired a form similar to that of the trading company. In its most primitive and typical form the colonial government, like that of the company, consisted of a governor, a deputy-governor, a council of assistants, and a general assembly. In this simple political body there was at first little differentiation of functions. The most important business, whether legislative, judicial or administrative, was performed by the whole corporate body, assembled in a "General Court." Matters of minor importance gradually came to be left to the official part of the body, that is, the governor, the deputy-governor, and the assistants, sitting together under the name of a "Court of Assistants," or "Council." Taking this simple and almost homogeneous political organism as a starting point, it will not be difficult for us to trace the growth of those more complex institutions which characterized the later colonies, and which became embodied in the first State constitutions.
The first important variation from what we have described as the simple and primitive form of the colony was due to the growth of the representative system. It is quite natural to suppose that this system was introduced into the
colonies from England and was an imitation, or at least a reproduction of the English House of Commons. An examination of the circumstances which led to the development of representation in the colonies will show how far this system was an importation from England, and how far it was distinctively American in its origin and character. The idea of representation is, of course, an inheritance from the Teutonic race. It has existed in a variety of forms at different times and in different places.. It existed in the Diets of Holland, in the States General of France, in the Cortes of Spain, in the Federal Assemblies of Switzerland. These various representative assemblies were in no proper sense the products of imitation. They rather grew out of the common political instinct, which has everywhere characterized the Teutonic race, of delegating authority which cannot be exercised directly. The enlargement of population must always be attended either by the decay of democratic institutions, or else by the adoption of some form of representation. The special form which representation will assume in any people, which possesses the political sagacity to solve the problems growing out of its own social life, will be determined by the circumstances of time and place. It will be seen that the form of representation which grew up in the American colonies was not a reproduction of the elaborate and comparatively mature system which then existed in England, but was the outgrowth of the simple life of the colonists themselves, and was moreover marked by those inchoate features which distinguish a primitive from a well-developed institution. The need of representation was felt by the colonists as soon as their population became scattered and unable to meet in a single assembly. The system arose from the requirements of the colonists themselves, and was fully established before it was recognized by the English crown.
In Virginia, on account of the scattered condition of the population, the need of representation was felt at the first