Sunday, April 7, 2019

Episode 091: State Constitutions, Part 1




Prior to July 1776, none of the colonies had declared full and permanent independence from Britain. But most were not operating under their old royal charters either.  Provincial Congresses operated in the colonies, but under what authority and how they should be structured all seemed to be open questions.  Many colonies still had royal governors attempting to rule either just off shore in a navy ship, or in some cases still within the colony.

I think it useful to see how and when each colony made the move to an establish an independent government.

Local politicians developed their own new constitutions to create a structure for their state government, at least until the violence ended and British rule was restored under acceptable terms.  Even before independence though, most of these new constitutions were written with an eye toward setting up what would likely become permanent independent governments.

In case you are wondering, I’m looking at each colony in order of when they first implemented their own Constitution.

New Hampshire

New Hampshire was one of the first colonies to move to a Provincial Congress and the first to adopt a constitution.  When Royal Governor Wentworth dissolved the Royal Assembly in June 1774, the members simply continued to meet and discussed forming a convention.  The Governor and Sheriff had to go down to the legislature and kick them out of the hall.  The legislators met again in Exeter the following month to form the First Provincial Congress.  That would be the first of five provincial congresses to meet over the next year and a half to deal with issues on an occasional basis.  The first few meetings simply seemed to be members of the old royal assembly continuing to meet without the Governor's authority.  But local town meetings eventually began selecting representatives to attend later provincial congresses.

NH Provincial Congress
1775 call for Census
(from Library of Congress)
By late 1775, patriot leaders had decided they needed some more regular form of government that did not include the Royal Governor.  The fifth Provincial Congress met in Exeter to create a new constitution, which it adopted in January 1776.  They did not submit it to the people for a vote.  They simply implemented it on their own.

The new constitution established a bicameral legislature, just like under royal government. It created a House of Representatives and a council.  The Provincial Congress became the House, which then appointed 12 men to form the Council.  After one year, New Hampshire would hold elections for both the House and Council.  It did not create any court system or Chief executive.  This constitution would remain in place until after the end of the war.

South Carolina

South Carolina was another early state to move to self-government.  The Royal Colonial Governor already had quit the colony in 1773.  The colony would not receive his replacement William Campbell until 1775.  Lt. Gov. William Bull served as acting governor, but did very little to govern.  He would not call the assembly into session for fear they would do something treasonous.

Royal Gov. William Campbell
(from Wikimedia)
In July 1774, leading colonists, simply got together to decide what to do.  They had no elections or any formal appointment.  Interested leading citizens of the colony met among themselves to choose delegates to the First Continental Congress and to create the “Committee of 99” to run the colony.

Later that year the Committee called for elections to what would become the First Provincial Congress, meeting in January 1775.  The Congress met and performed all sorts of government activities, such as raising a colonial army, printing colonial currency, and appointing delegates to the Second Continental Congress.  When Governor Campbell arrived in June 1775, he refused to recognize the Provincial Congress and called a Colonial Assembly into session.  After seeing that the Assembly was full of patriots too, the Governor soon dissolved that Assembly, but still could not stop the Provincial congress from running the colony.

In November 1775, the colony held elections for a Second Provincial Congress.  When that Congress met in January 1776, it began drafting a constitution, which took effect in March, again with no popular ratification.  In March the Provincial Congress simply dissolved itself, and then reconvened as the First General Assembly of South Carolina - no new elections, the old representatives became representatives in the new Assembly.

The Assembly elected a Council to serve as an upper chamber.  It also elected a President and Vice President, the first President being John Rutledge.  The Assembly also appointed all judges, sheriffs, and other judicial officers.  It allowed all property owning males to vote.  There was no restriction by race, although I’m not sure if there were any free black men who could meet the property requirements.

The 1776 Constitution only remained in place for two years, until the State created a more detailed Constitution in 1778.

Virginia

Virginia chose to govern through a series of conventions.  As in other colonies, the Royal Governor Lord Dunmore dissolved the House of Burgesses whenever the colonists voted on anything he considered disloyal to the King and Parliament.  Local representative then often met informally to decide what they would do anyway.  In August 1774, the representatives met in the First Virginia Convention, allowing counties and boroughs to elect representatives.  The First Convention selected delegates to the First Continental Congress and approved a series of trade restrictions to go along with the boycotts of British goods that patriots were pushing all over the continent.  The First Convention only lasted six days.

The Second Convention met in March 1775, divided between those who still wanted compromise with Parliament, and those ready to go to war.  Patrick Henry gave his famous Give me Liberty or Give me Death speech at this convention.  The radicals won the debate and passed resolutions to raise volunteer regiments to arm themselves and prepare to defend their rights.

Patrick Henry at the Convention (from Awesome Stories)
The Third Convention met in July 1775, after the battles at Lexington and Bunker Hill.  Radicals had only gained in power.  Instead of passing resolutions, the Convention now began to pass ordinances that they would enforce with the power of law.  It raised two regiments of Virginia Regulars to participate in the defense of their rights.  This Convention was focused more on creating a real government for the colony, and lasted over a month.

By the time of the Fourth Convention, in December 1775, Governor Dunmore had declared martial law and was in open battle with the Virginia Regulars and militia.  The Convention raised an even larger army and created a Committee of Safety to make decisions while the Convention was out of session, an early form of an executive branch.  During this Convention, the leaders received word that their army had defeated the Governor at the Battle of Great Bridge, and learned that the Governor had burned Norfolk, events I discussed in more detail back in Episode 77.

When the Fifth Convention met in May 1776, independence was clearly on the agenda.  The Convention instructed its delegates at the Continental Congress to call for a declaration of independence for all 13 colonies.  The Convention also began work on a Declaration of Rights and a new State Constitution.

Now the Virginia Declaration of Rights is a pretty important document, so I want to discuss it in detail.  George Mason, primarily authored the what became the Virginia Bill of Rights though it went through weeks of debate at the Convention.

We see many of the concepts in the Bill repeated in the Declaration of Independence in July.  As well as in the US Bill of Rights more than a decade later. It consisted of 16 points which I think are important enough to read verbatim.

Virginia Declaration of Rights

1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

2. That all power is vested in, and consequently derived from the people; that Magistrates are their trustees and servants, and at all times amenable to them.

George Mason
(from Wikimedia)
3. That government is or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of mal-administration; and that when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

4. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of Magistrate, Legislator, or Judge to be hereditary.

5. That the Legislative and Executive powers of the State should be separate and distinct from the Judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct.

6. That elections of members to serve as representatives of the people, in Assembly, ought to be free; and that all men having sufficient evidence of permanent common interest with and attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses without their own consent, or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented for the public good.

7. That all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.

8. That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land, or the judgment of his peers.

9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

10. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

11. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.

12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.

13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and in all cases, the military should be under strict subordination to, and governed by, the civil power.

14. That the people have a right to uniform government; and therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof.

15. That no free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.

16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity towards each other.

After adopting the Bill of Rights on June 12, the Convention then turned to its Constitution.  Now I’m not going to read the whole Constitution here, but it is well worth a read. It begins with a list of abuses by the King, similar to what we see in the Declaration of Independence a few weeks later.  It the explicitly states that the Royal Government in Virginia is “totally dissolved” and replaced with this new Constitution.

It divides government into three separate powers of legislative, executive, and judicial.  It divides the legislative branch into a House and Senate with the House elected as two members from each county, and one representative from the largest boroughs in the state.  The Senate would come from 24 special districts created for that purpose.  It says right to vote shall remain the same as it was under colonial rule, meaning white male property owners.

The legislature chooses the Governor annually, with a term limit of three sequential years.  The legislature would also choose judges for most courts and a Privy Council to assist the Governor.  The Governor and Privy Council appoint lower officials.

In short, the legislature pretty much ran the show, controlling who would serve as Governor and on the courts.  The Convention approved the constitution on June 29, and had it go into effect without submitting it to the people for ratification.

New Jersey

New Jersey with its relatively strong Tory faction got off to a late start with its Provincial Congress.  The Royal Governor and Colonial Assembly stayed in power through December 1775.  The New Jersey Provincial Congress had come into being in May 1775 while the Royal legislature still met.  Patriot committees in each county sent representatives to a Provincial Congress that met in Trenton.  Again, they did not have any legal or electoral authority.  These were simply prominent patriots who had the support of local committees.  The Congress met in three short sessions in 1775, then a longer session in January-March 1776.  The Provincial Congress voted for a tax to pay for a patriot army in the state.

Since the Colonial Assembly and Provincial Congress were both operating, they were competing for authority over the people of New Jersey.  Even though there remained a strong Tory segment in the population, the Provincials gradually took power.

Royal Gov. William Franklin
(from Wikimedia)
When Governor William Franklin attempted to convene the Assembly in May 1776, the Provincial Congress ordered his arrest and had him shipped to Connecticut.  The Assembly never met again.  The Provincial Congress met for its final session in June 1776, at which time it produced a constitution in a mere five days and ratified the document two days later.  The Congress submitted the Constitution to the Continental Congress for approval and began operation under its terms by the end of August, again without any vote by the people.

The Constitution, like those before it, created a two part legislature, an Assembly and Council.  Unlike other States, the people would elect the members of both houses, three representative from each county in the Assembly and one from each County to the Council.  The legislature selected a governor for a one year term.  The legislature would also appoint judges and military officers above the rank of captain.

One of the more radical articles allowed voting for all inhabitants with an estate worth at least £50.  This included blacks and women who did vote, though few met the property requirement (married women’s property belonged to their husbands).  The Constitution also guaranteed freedom of religion and prohibited the establishment of a state religion.

Despite the fact that the legislators threw together the Constitution rather quickly, it remained in effect for 65 years, though the right of blacks and women to vote only remained in effect for 30 years before the legislature changed the law and ignored the constitutional guarantee.

Delaware

Delaware was concerned not only about independence from Britain, but also independence from Pennsylvania.  Pennsylvania colony considered Delaware to be part of Pennsylvania, though it had allowed Delaware to have its own legislature.  Delaware wanted to use this moment to make sure it would be entirely independent of Pennsylvania.

Neither Delaware nor Pennsylvania had a royal governor.  William Penn and his descendants owned the colony and served as governor without royal appointment or election.  Delaware’s elected assembly remained in power throughout the colonial period.  It had no need to overthrow a governor or make any fundamental changes to the way its government worked.  The elected Assembly took on a patriotic bent as the people of Delaware themselves moved in that direction.

Even so, in June 1776, the General Assembly suspended “government under the Crown” which also effectively ended any control from Pennsylvania.  After the Declaration of Independence, the Assembly called for a constitutional convention in August with ten representatives from each of the three counties.  The Convention met on August 27 and had a constitution ready to go into effect by September 20.  Again, they saw no need to submit the new constitution to the people for a vote.

Under the new Constitution, the government remained similar to what existed in the colonial government.  A general assembly would be elected annually by all freeholders (meaning landowners) with seven representatives from each county.  They would also elect an executive council with three members from each county serving three year terms.

Both houses would elect a president who would serve as chair of the executive council and was term limited to three years.  The President would also have a four member Privy Council with two members selected by the Assembly and two by the Legislative Council.

The President and General Assembly would jointly elect judges for various courts.  The President also sat on a seven person panel (the other appointed by the Assembly and Council) to hear appeals from Supreme Court decision.

The Constitution also prohibited the importation of any slaves, the establishment of any state religion, and barred clergy from holding any public office.

- - -

Next  Episode 92: State Constitution, Part 2

Previous Episode 90: The Battle of the Cedars



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Further Reading:
Resources to learn more about today’s topic.

Websites: 

Constitution of New Hampshire - 1776: http://avalon.law.yale.edu/18th_century/nh09.asp

The Provincial & State Government in South Carolina During the American Revolution:
http://www.carolana.com/SC/Revolution/sc_revolution_provincial_government.html

Constitution of South Carolina - 1776 http://avalon.law.yale.edu/18th_century/sc01.asp

Dunaway, W.F. Jr. "The Virginia Conventions of the Revolution" The Virginia Law Register Vol. 10, No. 7 (Nov., 1904), pp. 567-586 http://www.jstor.org/stable/1100650 (free download)

Virginia Bill of Rights and Constitution: http://www.nhinet.org/ccs/docs/va-1776.htm

New Jersey Constitution: http://www.state.nj.us/njfacts/njdoc10a.htm

Constitution of Delaware; 1776 http://avalon.law.yale.edu/18th_century/de02.asp

Webster, William C. "Comparative Study of the State Constitutions of the American Revolution"
The Annals of the American Academy of Political and Social Science, Vol. 9 (May,
1897), pp. 64-104: https://www.jstor.org/stable/1009670

Free eBooks
(from archive.org unless noted)

Minutes of the Provincial Congress and the Council of Safety of the State of New Jersey, 1775-1776 Naar, Day & Naar, 1879.

Journal of the Votes & Proceedings of the Convention of New Jersey: begun at Burlington the tenth of June 1776; to which is annexed, sundry ordinances and the Constitution, Joseph Justice, 1831 (Reprint of the 1776 ed., printed and sold by Isaac Collins, Burlington).

Proceedings Of The Convention Of The Delaware State Held at New-Castle on Tuesday the Twenty-Seventh of August 1776, James Adams, 1776 (reprint Star Publishing, 1927).

Dealey, James Q. Growth of American State Constitutions from 1776 to the end of the year 1914, Ginn & Co. 1915.

Elmer, Lucius Q.C. The Constitution and Government of the Province and State of New Jersey: with biographical sketches of the governors from 1776 to 1845 and reminiscences of the bench and bar during more than half a century, Martin R. Dennis and Co. 1872.

Schouler, James, Constitutional Studies, State and Federal, Dodd, Mead & Co., 1897.

Thorpe, Francis Newton The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the State, Territories, and Colonies Now or Heretofore Forming the United States of America, Comp. and Ed. under the Act of Congress of June 30, 1906. (Vol 1-7) Govt. Print. Off, 1909.

Walker, Joseph New Hampshire's Five Provincial Congresses, July 21, 1774-January 5, 1776, New Hampshire Historical Society, 1905.

Washington, Henry A. The Virginia Constitution of 1776. A Discourse Delivered Before the Virginia Historical Society, at their Annual Meeting, Macfarlane & Fergusson, 1852


Books Worth Buying
(links to Amazon.com unless otherwise noted)*

Adams, Willi Paul The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era, Rowman & Littlefield, 2001 (book recommendation of the week).

Broadwater, Jeff George Mason, Forgotten Founder, Univ. of NC Press, 2006

Fleming, Thomas 1776: Year of Illusions, W.W. Norton & Co., 1975.

Tarr, G. Allen Understanding State Constitutions, Princeton Univ. Press, 1998


* This site is a registered Amazon Associate.  Please help support this site by purchasing any of these books, or any other Amazon product, via the links on this site.  If you start by clicking on a book link above and then browse to buy something completely different on Amazon, American Revolution Podcast will get credit for your purchase.

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