and the colonial Bills of Rights in 1765 and 1774, as well as the Declaration of Independence. Although the earliest constitutions did not for the most part formally provide for the separation of powers, yet the states emphasized the virtual independence of the judiciary, as the governmental agency through which the rights of men and of citizens were to be safeguarded.

It must be admitted, however, that the principle of religious freedom was not fully established in the constitutions, for practically all of them discriminated in favor of Christians or Protestants, and several demanded the acceptance of doctrinal beliefs for officeholding and voting. Thus in Pennsylvania the constitution of 1776 required each member of the assembly to subscribe to the following declaration:

“I do believe in one God, the creator and governor of the universe, the rewarder of the good and the punisher of the wicked. And I do acknowledge the scriptures of the Old and New Testament to be given by divine inspiration."

Similarly, the constitution of South Carolina, 1778, states:

"The qualification of electors shall be, that every free white man, and no other person, who acknowledges the being of a God and believes in a future state of rewards and punishments . . . shall be deemed a person qualified to vote." 1

The governor, who had in general been the representative of the king in the colonies, was deprived of most of his former powers, made elective in eight states, and was appointed by the legislature in the remaining six. Seven states granted a one-year term only, three allowed three years, three had a two-year term and one (Kentucky) gave four years. The

1 For a more complete statement see, Webster's article in Annals, May, 1897, pp. 87-9.

council of the colonial governor had split into two bodies, an executive council and an upper legislative house. In the earlier eleven constitutions the executive council appeared in all but two of them (New York, New Jersey); its members were either elected by popular vote or by the legislature. But by the end of the century four states 1 had dropped the provision from their revised constitutions, and only one of the three new states (Vermont) had adopted it. As neither Connecticut nor Rhode Island had councils of that nature, six states only 2 had a governor's council at the beginning of the nineteenth century. The governor's veto was permitted in one state only (Massachusetts) in the earlier constitutions, but by the end of the century four other states had adopted the governor's veto1 and Vermont had granted the power to governor and council.

3

In the colonies the legislature had been bicameral except in Georgia and Pennsylvania. These in their first constitutions continued their unicameral organizations but in their later constitutions of 1789, 1790 respectively, changed to the bicameral system.5 Vermont, however, entered the Union with a single chambered legislature retaining it up to the year 1836. The colonial governor's council in becoming a senate became elective, and its members were chosen either from existing or artificial districts, representing

1 Delaware, Pennsylvania, South Carolina, Georgia.

2 Massachusetts, New Hampshire, Vermont, Maryland, Virginia, North Carolina. The constitution of Maine (1820) provided for a governor's council. On the other hand Vermont in 1836 substituted a senate for its council; Maryland in 1837 and Virginia in 1850 dropped their councils; in 1868 the council in North Carolina was made to consist of members ex officio, instead of members elected by the legislature.

3 In New York the governor and a special ex officio council had veto powers over legislation.

4 New Hampshire, Georgia, Kentucky, Pennsylvania.

See, Johns Hopkins Studies, Rise and Development of the Bicameral System in America, by T. F. Moran, Series XIII.

either population, or the district as such. The membership of the senate, which in general was supposed to represent propertied interests, varied from nine in Delaware to forty in Massachusetts. Senators were elected annually in seven of the states including the "Assistants" of Connecticut and Rhode Island. Five states had a four-year term and three states respectively had terms of two, three and five years. Six of the states elected their senators on the class or rotation system. Only one state (Maryland) 1 used an indirect form of election, all the others elected senators by direct vote. The lower house was continued practically as it had been under colonial organization. It aimed to represent the people as such and hence membership was roughly apportioned among the districts according to the number of citizens, or tax-paying inhabitants, who in general formed the electorates in their several states. Elections were annual except in South Carolina and Tennessee where biennial elections were held.

The judicial system also in general remained unchanged, except that judges formerly named by the Crown were either chosen by the legislature or by the governor and council. Judges of the higher courts were elected by the legislatures in six states,2 appointed by the governor either with or without the aid of council or senate in six states,3 in New York appointed by a committee of four senators, and in Georgia elected by the voters for a three-year term.

1 In the assembly of Maryland the deputies were to be "the most wise, sensible and discreet" of the people, and the senators to be "men of the most wisdom, experience and virtue."

2 New Jersey, Virginia, North Carolina, South Carolina, Tennessee, Vermont.

3 By the governor, Pennsylvania, Delaware; by the governor and senate, Kentucky; by governor and council, New Hampshire, Massachusetts, Maryland.

The constitutions themselves were terse and contained) few details. The earliest, being temporary, were short, i but they lengthened at each revision. By the end of the century the shortest constitution (New Jersey) contained about twenty-five hundred words, and the longest (Massachusetts) about twelve thousand.

As for the charters of Connecticut (1662) and Rhode Island (1663), they were substantially identical1 in phraseology and in their form of government. Each provided for an elected governor, deputy-governor, and body of assistants, forming an upper house of a general assembly; the lower house was made up of delegates from the several towns, varying in number with population. The assembly had general powers of oversight and administration under the charter and annually elected the judges of the courts, itself also having certain judicial functions. The usual rights of Englishmen were guarantied and in Rhode Island religious liberty also. Elections were annual, and as in the other states a property or taxpaying qualification was necessary for the privilege of voting. There was of course no provision for the amending of the charters, so that when these colonies in 1776 became states the general assemblies were the repositories of the powers of their respective states and legally autocratic.

1 Verbis mutatis mutandis.

CHAPTER IV

GROWTH OF STATE CONSTITUTIONS FOR THIRTY

YEARS

IN the second period, from 1801-30, the trend of constitutional development can best be indicated by noting (1) the changes made in the sixteen older constitutions, and (2) by summarizing the chief provisions of the constitutions of eight new states; Maine in the east, Missouri, the first of the trans-Mississippi states, three1 from the northwest territory and three in the south.2

CHANGES IN THE OLDER CONSTITUTIONS

Of the older states six only made use of the convention, the remaining ten either made no alterations in their constitutions or were satisfied with such changes as could be accomplished by the ordinary processes of amendment. The amendments for the most part were of small consequence but the changes in three states deserve mention. Maryland abolished the property qualification for suffrage and for officeholding and reorganized its judicial system; Georgia also reorganized its judicial system and provided that the governor be elected by the voters instead of by the assembly, and South Carolina in 1808 rearranged its representation in the house, trying the experiment of basing one half the representation on white population and the other half on the proportion of "taxes raised by the

1 Ohio 1802, Indiana 1816, Illinois 1818.

2 Louisiana 1812, Mississippi 1817, Alabama 1819.