CHAPTER II.

MAKING OF THE AMERICAN CONSTITUTION.

HE political steps that led to American independence were taken gradually. At the beginning of the war, an intercolonial or "continental" Congress assembled. Gatherings, similar in principle, had been held on other occasions in colonial experience without involving a denial either of the civil rights of individual colonies or of the authority of the mother-country. Indeed, the colonists, though in no gentle mood, contemplated at first not political separation, but only defence against what they claimed to be an unconstitutional attack upon their liberties as English subjects; and Englishmen had many a time in the history of the mother-land itself taken up arms for the preservation of liberties.1 But the logic of events on American soil

1 "A separation from Great Britain was viewed with alarm and trepidation, and was not only opposed by the Tory party as a whole, but also by many Whigs, who feared it might lead to anarchy and its attendant evils." — Straus, Origin of Republican Form of Government in the United States, 5. "It was long before the ill will, which the systematic disregard by Parliament of the rights of the colonists had excited, triumphed over this feeling. Even in August and September, 1775 — that is, half a year after the

slowly shaped the issue, and the Congress was forced more and more into acts involving the assumption of sovereign power, and plainly inconsistent with loyalty to

battle of Lexington - so strong was the Anglo-Saxon spirit of conservatism and loyalty among the colonists, that the few extremists who dared to speak of a violent disruption of all bonds, entailed chastisement upon themselves and were universally censured.”. Von Holst, Constitutional History of the United States, I. 2. See also Works of John Adams, II. 423, and American Archives, III. 21, 196, 644, etc. "In May, 1775, Washington said: 'If you ever hear of me joining in any such measure [as separation from Great Britain], you have my leave to set me down for everything wicked.' He had also said: 'It is not the wish or interest of the government [meaning Massachusetts], or of any other upon this continent, separately or collectively, to set up for independence.' And in the same year, Benjamin Franklin assured Chatham, that no one in America was in favour of separation. As a matter of fact, the people of the colonies wanted a redress of their grievances — they were not dreaming of separation, of independence. . . . We must also remember that the Revolution was begun and carried on by a noble minority that the majority were really in favour of Great Britain."— Ingersoll, North American Review, CLV. No. 2, August, 1892, p. 183. It is proper in this connection to add, that in the opening period of the war, the feeling in England in favour of American brethren "was intense. Officers resigned their the great cities took

commissions rather than serve in America; open ground in favour of the colonies; and some of the English middle classes were mourning the dead at Lexington. As the war increased in its intensity, this sentiment necessarily decreased; but even while Parliament was supporting the war by votes of more than two to one, the ministry was constantly hampered by the notorious consciousness that the real heart of England was not in it. Even when 25,000 men were voted at the king's wish, provision had to be made to obtain them from Germany.” — Johnson, Encyclopædia Britannica, 9th ed., XXIII. 742.

the crown. For awhile even these were excused, on the plea of temporary emergency. Repeatedly, and even to the last, did the colonies address petitions to the king, regretting the necessity to which they were driven, and urging, in the old words of English usage, "redress of grievances" for the restoration of peace and unity. Yet, step by step, as by a resistless destiny, were they swept on toward the complete severance of the old relations. Opinion changed with the progress of the conflict, and a popular demand for independence arose and grew into a controlling motive. The Declaration of 1776 thus resulted, and the war finally developed into a struggle for national existence.

"1

But it is important to bear in mind, that the Revolution disarranged but slightly the fabric of government in the individual colonies. "It did not," Webster has affirmed, "subvert the local laws and local legislation." It "did not," Chancellor Kent has said, "involve in it any abolition of the common law." When independence came, and the old colonies were turned into new States, no real political break occurred; but constitutions embracing the essential principles of the colonial system were adopted in all the States save two: in Delaware, Maryland, New Jersey, Pennsylvania, North Carolina, and Virginia in 1776; in New York and Georgia in 1777; in South Carolina and Massachusetts in 1778; and

1 "British and colonial statutes made prior to the Revolution continued also in force, unless expressly repealed.". The Critical Period, etc., 69.

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in New Hampshire in 1784. Connecticut and Rhode Island were the exceptions, and, as already seen, the former continued under its royal charter until 1818, and the latter until so late as 1842, i.e. until within living memory. As Professor Johnson has said, these "new constitutions were the natural outgrowths of the colonial system, established by charters, or by commissions to royal or proprietary governors; and the provisions of the constitutions were only attempts to adopt such features as had grown up under the colonial systems, or to cut out such features as colonial or State experience had satisfied the people were dangerous." And as the political usage of the colonies had come originally from Great Britain, and had been adapted and modified in

1 "On the 10th of May, 1776, the Continental Congress recommended to the several conventions and assemblies of the colonies the establishment of independent governments for maintenance of internal peace, and the defence of their lives, liberties, and properties.' Before the end of the year in which this recommendation was made, by far the greater part of the colonies had adopted written constitutions, in which were restated in a dogmatic form all of the seminal principles of the English constitutional system. Thus ended that marvellous process of growth, through which the English colonies in America were rapidly developed into a group of independent commonwealths, in which each individual member was, in its organic structure, a substantial reproduction of the English kingdom.". Origin and Growth of English Constitu

tion, 45.

2" It was not possible that the term American should suddenly supplant that of Englishman; but the successive steps by which the change was accomplished are easily perceptible." — Johnson, Encyclopædia Britannica, 9th ed., XXIII. 739.

3 New Princeton Review, September, 1887.

colonial practice, so now that political usage passed on to the constitutions of the new States, to be again adapted and modified by varying wants as such might arise, but with essential characteristics still maintained and steadily transmitted.

From the nature of the case, there could be no settled central government for the newly forming nationality in the early stages of the contest, and before independence had been formally proclaimed. In assuming governmental functions, the Continental Congress became essentially a revolutionary body. Its existence was simply the result of an emergency created by the need of united opposition to the home authorities. Its powers rested upon the acquiescence of the several colonies and were temporary and transitional. And it was re

garded, while it lasted, as an advisory assembly rather than a government.

But when the centre of colonial unity in the crown was lost by the Declaration of Independence of 1776, a permanent union on American soil became a political necessity. And on the very day that saw the Declaration put forth, steps were taken which led to the adoption, in the following year, of "Articles of Confederation and Perpetual Union," binding all the States in a “firm league of friendship with each other." This earliest attempt at the construction of a national government established what, as the sequel proved, was neither national nor a government. In reality it was a mere league of States, allied for common aims, but with each