Toward 1987: The Foundation for the Constitution

by Cornelius B. Kennedy

By 1786, a consensus was slowly emerging that the confederacy, created by the former colonies in 1778 after they declared themselves to be sovereign independent states, was inadequate to deal even with those matters which the now sovereign states had committed to it. There was as yet, however, no agreement on how to strengthen the bond of union.

Those decisions would be made the next year in 1787 at the convention in Philadelphia. In making those decisions, the delegates to the convention were guided both by the experience of 150 years of local self government under the liberal colonial charters and by a decade of experience under the constitutions adopted by the colonies when they became sovereign independent states.

The framing of the Constitution really begins, therefore, in 1618 when the London Company adopted the Ordinances of Virginia after the English king transferred to it the management of the colony established at Jamestown in 1606. By those Ordinances, the London Company turned the management of the colony over to the colonists themselves. Under the Ordinances, the colonists participated in the legislative, executive and judicial functions of the government of the colony through two councils. One council, whose members were chosen by the colonizing company from among the colonists, assisted the governor. The other council, called the General Assembly, made the laws. Composed of members "chosen by the Inhabitants," it acted by "the greater Part of the Voices then present" and was vested with the power to "make, ordain, and enact such general Laws and Orders, for the Behoof of the said Colony, and the good Government thereof' as should appear necessary. Both councils had jurisdiction over judicial matters in addition to their respective jurisdiction over executive and legislative matters. According to a 1624 "Declaration" by the colonists with respect to their "hande in the governinge of themselves," monthly courts were held in every precinct of the colony to "do justice in redress of all small and petty matters' while matters of more consequence were referred to the governor, the council, and the general assembly.

The 1629 charter granted by the king to the founders of the Massachusetts Bay Colony followed a similar pattern. It provided for a governor, deputy governor, and eighteen "assistant" who were elected from the freemen of the Company. These elected representatives were "to assemble every month, or oftener at their Pleasures" and keep "a Courte or Assemblie" for ordering and directing the affairs of the colony. There was also a Great or General Courte or Assembly composed of the governor, deputy governor, the elected representatives and all free men of the colony. It met quarterly to make "Lawes and Ordinances for the Good and Welfare of the saide Company" which were not contrary to the laws of England and to impose lawful fines, imprisonment "or other lawful Correccon."

Although this form of government placed the making and execution of the laws and the administration of justice in the Virginia and Massachusetts Bay colonies in the hands of the colonists themselves or their elective representatives, it was only twenty years before the combination of legislative and judicial powers in the same hands raised concerns of tyranny. Thomas Hooker, who had already led a movement out of the Massachusetts colony to found settlements along the Connecticut River, forcefully expressed his concern in a letter to Governor Winthrop in 1638 when he wrote that the almost unlimited discretionary power exercised by judges in Massachusetts made it plain that if judges were not limited by laws, government would degenerate into tyranny and confusion.

Three years later, the 1641 Massachusetts Body of Liberties directly addressed this concern by providing that no one could be penalized under color of law or countenance of authority "unless it be by virtue or equitie of some expresse law of the Country waranting the same" adopted by the general assembly and sufficiently published. This provision effectively separated the legislative and judicial functions by expressly limiting the powers and discretion of those acting as judges to the enforcement of laws which had already been adopted and published. Thus, both the concept of "government under law" and the rationale for the doctrine of separation of functions, both of which are fundamental to the Constitution, were a part of colonial political thought almost 150 years before the Federalist Papers argued that concentrating all the powers of government, legislative, executive and judiciary in the same hands is precisely the definition of despotic government (Federalist 47).

The 1641 Massachusetts Body of Liberties contained other provisions which also were to become a part of the Constitution. The governor and other administrators, officers and the members of the general legislative court were to be elected by the people. Every man, whether inhabitant or foreigner, free or slave, was at liberty to come before any public court, council or town meeting and orally or in writing move any question or present for action any complaint, petition or bill within the proper jurisdiction of that body. Trial by jury was generally guaranteed, with the decision in a case to be made by jurors chosen by the free men of the community. A provision, later used by Chief Justice Marshall in Mar-bury v. Madison as the underpinning of Marbury's right to seek a writ of mandamus against Madison to obtain the delivery of his commission as notary public, gave any person denied or deprived of any power or liberty granted by the Body of Liberties the right "to commence and prosecute their suite, Complaint or action against any man that shall so doe in any Court that hath proper Cognizance or judicature thereof'

From 1641 on, the separation of the judicial and legislative functions, with the judicial function limited to the enforcement of laws already passed by the elected representatives, was increasingly adopted as a basic concept of self government in the colonies. Under the 1663 charter of Rhode Island, for example, although the elected representatives were given the power to make and repeal such laws, statutes, orders and ordinances "as to them shall see meete for the good and wellfare," the legislative body no longer had the power to hear and decide cases which arose under the laws. Instead, it was to determine the places and courts of jurisdiction for the hearing and determining of all actions, cases, matters and things happening within the colony which shall be in dispute.

The charter of West New Jersey in 1677 even more clearly separated the judicial function from the legislative and executive functions, but preserved direct popular control over the judiciary as well as over the legislative and executive functions, by providing that the judicial power to decide cases was vested in the jury selected by the people, not in the judge. The Charter provided "[t]hat there shall be in every court, three justices or commissioners, who shall sit with the twelve men of the neighborhood, with them to hear all causes." While the judgment in the cause was to be announced by the justices, it was to be "such judgment as they shall receive from, and directed by the said twelve men, in whom only the judgment resides, and not otherwise ... And if any judgment shall be passed in any case civil or criminal, by any other person or persons, or any other way, then.., it shall be held null and voId..."

By such provisions, 110 years before the drafting of the Constitution the people of the self governing colonies had already opted for a form of self government which both separated the judicial function from the legislative and executive functions and retained citizen control over the making of laws and the adjudication of cases alleging violations of those laws. Indeed, control over the judiciary by the people was two-fold because the scope of the judicial power was limited to the enforcement of the laws adopted by the people's elected representatives and the decisions in individual cases were to be made by juries composed of the people, rather than by the judges.

For almost a century after 1677, the colonists enjoyed this concept of government under the broad right of self government in local matters provided by their charters. Their euphoria ended abruptly in 1765, however, when Parliament adopted the Stamp Tax Act. The colonists were dismayed. The law clearly threatened the form of government they had developed during the past 150 years. First, it was a law imposed on them other than by their own elected representatives. Second, by providing that the law was to be enforced in the Courts of Admiralty, which were executive branch courts, it breached both the concept that juries composed of the people should decide such matters and the concept of a judiciary separate from the legislative and executive branches of the government. Thus, while the Stamp Tax Act is most widely known because of the charge that it constituted taxation without representation, John Adams wrote of the separation of functions issue:

Although the Stamp Tax Act was repealed the next year, the Declaratory Act, which accompanied the repeal, marked the beginning of an assault by Parliament on the concept of self government which the colonists had grown accustomed to during the previous one and one half centuries. Charles Townsend became the leader of the House of Commons that year and he announced:

To accomplish that goal, Parliament under Townsend's leadership adopted the Townsend Acts which asserted increased governmental control over the colonies. Resistance to these acts by the colonists caused the repeal of some, but the duty which had been imposed on tea was not repealed. The colonists expressed their resentment by the Boston Tea Party. In retaliation, Parliament passed a series of statutes which became known as the Intolerable Acts. Two of these acts, although specifically applying to Massachusetts, greatly alarmed all of the colonies because they provided for the exercise of legislative power in the colony by a council appointed by the Crown and for the selection of jurors by county sheriffs appointed by the Crown instead of the selection being made by the people in town meetings as had previously been the practice. This destroyed both the tradition of popular control of the government by the governed and the colonial tradition of government based on a separation of functions.

The colonies joined together to protest these acts of Parliament. In the 1774 Resolves of the First Continental Congress, they respectfully but firmly set out their desire to preserve their right to local self government "in such manner as has been heretofore used and accustomed." After the king failed to heed their pleas to protect their right to self government from invasion by Parliament, the colonists declared their independence on July, 4, 1776. The Revolutionary War followed. When John Adams interviewed a soldier who had been in the Battle of Concord and Lexington, and asked the question "what was the matter, what did you mean going into the fight." the soldier responded:

This determination to protect the right of self government, which by then they had long enjoyed, was reflected in the constitutions and declarations of rights which all but two of the newly sovereign states adopted between 1776 and 1780: Virginia, Delaware, Maryland, New Hampshire, New Jersey, North Carolina, Pennsylvania, and South Carolina in 1776; Georgia, New York and Vermont in 1777 and Massachusetts in 178Q Only Connecticut and Rhode Island did not adopt constitutions. They continued, instead, under the form of government established by their liberal colonial charters. The constitutions or declarations of rights adopted in 1776 by Pennsylvania, Maryland and North Carolina all emphatically declared that the people had the sole and exclusive right of governing. The constitutions of Maryland, Massachusetts, Vermont, Pennsylvania and Virginia addressed the bitter complaints of "despotism" and "tyranny" of public ministers, and of "ministerial rapacity' which had made in the Declaration of the Causes and Necessity of Taking Up Arms, adopted July 6, 1775, by declaring that public officials were "trustees and servants of the people." Pennsylvania, Massachusetts, Vermont and Virginia specifically provided that the people had the right to "reduce" public officers to "a private station" and to fill the vacancies by regular elections as a means of restraining those who were employed "in the legislative and executive business of the State" from "oppressing" the people.

The Virginia constitution provided expressly that the legislative and executive powers of the state shall be separate and distinct from the judiciary; and the Maryland, North Carolina and Georgia constitutions provided that those functions shall be forever separate and distinct from each other. Other state constitutions prohibited anyone who held an office "for profit" in one branch of the government from holding an office in another branch at the same time.

Most commonly, the constitutions of the new states provided that the legislative branch was to consist of two houses with the members of the House elected on a different basis than the members of the Senate or Council. Often the constitutions provided that all the money bills shall originate in the House, but that all other bills could originate in either chamber and be amended in the other chamber. If a constitution provided for a privy council to assist the governor, as Delaware's did, its members could not also serve in the legislature.

The chief executive officer of the state, sometimes called President or Chief Magistrate, was commonly chosen by joint ballot of both houses of the legislature. In exercising the executive powers of government, he was expressly "limited and restrained" by the constitution of the state and its laws. The phrase "with the advice and consent of' appears frequently in connection with the power of the chief executive to appoint military and civil officers of the state, who would serve "during pleasure," unless otherwise directed by the legislature. Members of the judicial branch were usually appointed by joint action of the executive and legislative branches and continued in office "during good behavior."

The constitution of Georgia specifically provided that the legislative branch could make no laws which were "repugnant to the true intent and meaning of any rule or regulation contained in this constitution." The constitution of New York provided that all bills which had been passed by both houses of the legislative branch should be presented to the executive council which could return a bill to the house in which it had originated with objections. If upon reconsideration, both houses by a two-thirds vote again passed the bill, it became law A bill also became law if it was not returned within ten days after being presented. A number of constitutions required all bills to be read three times on different days before passage to permit the people time to express their views, except in cases of great necessity and danger.

The control of the people over the judicial branch was assured by provisions that laws which the courts enforced could be made only by their elected representatives, and by provisions that made the jury the judge of the law as well as of the facts. The constitution of Massachusetts provided that each branch of the legislature, as well as the governor and council, could require opinions of the justices of the Supreme Court upon important questions of law and upon "solemn occasions" and also that the governor, in order that he could act for the benefit of the public and not be dependent on the legislature for his support, should have a fixed salary, as did the justices of the Supreme Judicial Court.

Usually, while the form of government was set out in the constitution, it was accompanied by a separate declaration of rights. These included the right to be secure from unreasonable search and seizures, the right to be formally charged before being held to answer for any crime or offense, freedom of the press, the prohibition of bills of attainder and ex post facto laws, and freedom of speech and assembly.

Despite such provisions intended to assure free and fair self government, Thomas Jefferson was to write in 1781 with reference to the government of his own state of Virginia:

John Adams of Massachusetts had written even earlier in 1776, of the need for a separation of functions to check tyranny in government and preserve freedom:

Jay, from the state of New York, described even more succinctly the problem posed by a government in which elected representatives of the people performed all three functions of government, when he wrote Jefferson on August 18, 1786:

This concern which Jefferson, Adams and Jay expressed was strikingly reminiscent of the concern expressed nearly 150 years earlier about the danger of tyranny when elected representatives of the people performed all three functions of government, as they did under the 1618 Ordinances of Virginia and the 1629 Charter of the Massachusetts Bay Colony.

Thus, when the delegates to the Constitutional Convention assembled in Philadelphia the summer of 1787, they brought with them not only over 150 years of experience in local self government but also a decade of experience under the constitutions of their individual states. They were not engaged so much in a great experiment as they were in applying the lessons already learned about self government through those experiences to the situation at hand in order to prepare that Constitution "which has appeared to us the most advisable."