II

CONSTITUTIONAL LAW

1701-1901

BY SIMEON E. BALDWIN, M.A., LL.D.

THERE can be no constitutional law where there is no constitution. That, to an American, seems to have been the condition of England at the beginning of the two centuries which are the subject of consideration in this volume, and it was hardly less such at their close.

In 1701 a grandson of Charles I. was upon the throne, and still another of the Stuart reigns was to follow. The royal veto was interposed to defeat the will of The British Parliament as late as 1707. In the standard edi- Constitution. tion of Cowel's Interpreter, or Law Dictionary, published at London in 1727, we find under the title King these among other words of description: "He is supra Legem by his absolute Power. Bract. lib. 1, cap. 8. Kitch. s. 8. And although for the better and more equal Course in making Laws, He do admit the three Estates, that is, Lords Spiritual, Lords Temporal, and the Commons, unto Council: yet this derogates not from his Power; for whatever they Act, he by his negative Voice may quash. See concerning this Smith de Rep. Anglor. lib. 1, cap. 3, and Bracton, lib. 2, cap. 16, num. 3, and Britton, c. 39. suspend any particular Law that seems hurtful to the Publick. Blackwood in Apologia Regum, cap. 11."

He

may

alter or

There were many Englishmen who would have denied these positions, but they would simply have transferred this attribute of absolutism from the King alone to the King,

Lords, and Commons. No one disputed then, no one disputes now, that a simple Act of Parliament can change the most fundamental laws of the realm. They were so changed by the Act of Settlement, which passed over the natural heir to the throne, imposed a religious test upon the sovereign, and established the Hanoverian dynasty. Parliament, says Blackstone, is "the place where that absolute despotic power which must in all governments reside somewhere is entrusted by the constitution of these Kingdoms. It can change and create afresh even the constitution of the Kingdom and of parliaments themselves. . . . It can, in short, do everything that is not naturally impossible." 1

Effect of Acts

It was the good fortune of the American colonists that among the settled rules for the construction of an Act of Parliament one was that it should not be deemed of Parliament to extend to any colony which was not by express terms included in its operation. The only British colonies, at first, were those in this country, and they were left for the most part to the direction of the crown. was in each case regulated primarily by charter.

on Colonies.

This

Early in the eighteenth century a claim was put forward, and for many years maintained with apparent confidence by some, that the Act of Union between England and Scotland, adopted in 1707, had superseded all prior regulations as to American religious establishments. This Act, it will be recollected, preserved in perpetuity for each country the church then established there, the provision in reference to the Church of England being that it should so continue in England and the "Territories thereto belonging." In behalf of Episcopalians in America, and with the sanction of the Bishop of London,2 to whose see they were, in a measure, attached, it was contended that as the colonies were settled on territories belonging to England, they came expressly

1 Commentaries, I. * 160.

2 Chalmers, Opinions of Lawyers, 44, 50. The crown law officers, without supporting this doctrine, advised that no ecclesiastical synods could be called by an American colony, without the royal license. Ibid.

within the terms of the Act. Dr. Douglass, an intelligent and generally candid historian, asserted this so late as 1753, in the second volume of his Summary.1 The New Jersey Archives show that in a report by the Attorney-General of that colony, made in 1772, objections on the same ground were stated to the grant of a charter for a society in aid of the widows and families of ministers of the Scotch Presbyterian Church. The Governor and Council granted the charter, notwithstanding; but on the ground that it constituted merely a charitable and not an ecclesiastical corporation. The sounder doctrine, however, evidently was that as the term "territories," in the Act of Union, was fairly applicable to such merely territorial dependencies as the Channel Islands, it could not be extended by construction to colonies not named, which were in the settled enjoyment of legislative powers.2

It is in the colonial charter that we find the germ of American constitutional law. Each of these, whether of the proprietary, provincial, or republican type, was Our colonial the fundamental law of the jurisdiction, accord- charters. ing to which its government was to be organized and administered. Except that it was not self-imposed, and that it was subject to revocation without the consent of those for whom it was made, it answered very nearly to our modern conception of what a Constitution should be. It was a brief document, laying down a general scheme of political organization, granting large powers of legislation and administration, and imposing a few, and but a few, fundamental restrictions.

Connecticut was so well satisfied with hers, that she retained it, with few modifications, as the foundation of her system of civil government until 1818, and Rhode Island clung to hers in the same way for a quarter of a century longer. On the other hand, those charters which reserved a

1 pp. 121, 149, 336.

2 See Documents relating to the Colonial History of New York, VII. 373; Beardsley, History of the Episcopal Church in Connecticut, I. 50.

controlling administrative authority to a royal governor or to proprietaries were a constant source of popular discontent.

The supervising power of the crown resided nominally in the King in Council; really in a committee of the Council without the King. Certain members of the Privy Council were thus made a standing tribunal, by the name of the Lords of Trade and Plantations. By their authority any colonial statute could be set aside as unauthorized by the charter, and the judgments of the colonial courts re-examined and reversed. From 1718 down to the treaty of peace with the United States in 1783 they were provided with a special counsel of their own, besides being entitled to call on the Attorney-General and Solicitor-General for advice.1

In one respect this royal prerogative, which was not infrequently exercised, was favorable to the development of American liberty and law. It secured a certain unity of movement in their growth. It produced symmetry of form. It built up a sentiment of common nationality. It promoted the study of legal institutions. It helped to rear an American bar, worthy of the name.

The first great lawsuit, however, affecting the American colonies was brought by the crown before the ordinary courts of justice at Westminster. This was the indictment in the King's Bench against those who had been incorporated by the name of the Governor and Company of Massachusetts Bay. They were charged in quo warranto proceedings with usurping the franchise of exercising powers of civil government in Massachusetts under a charter which contemplated nothing more than the conduct of a trading enterprise, having its seat in England. This was in 1635, five years after Winthrop and his association had carried their patent across the sea, and transformed their court of assistants, meeting occasionally in a private house at London to perform the functions of a board of directors of a business corporation, into a legislative assembly, sitting in Boston, and decreeing sentences of life and death.

1 Chalmers, Opinions of Lawyers, 9, 11.

The main question made was whether such a company could convert itself into what the lawyers of the time styled "a corporation on the place," that is, could have its administration transferred to the place which was the actual centre of its business affairs. The judgment upon this went against them, but by later decisions was pronounced unsound.1

Another question of no less importance was as to how far the power of legislation was conferred upon the colonial assembly. That no such power could be claimed was argued with great force by one of the Connecticut clergy, Rev. Gershom Bulkeley, in an attack upon the government of Connecticut, published in London in 1692.2

During the seventeenth century there were no judicial proceedings on this side of the Atlantic which deserve to be remembered as legal precedents. The only considerable courts were the General Courts, that is, the legislative assemblies, or the Governor and Council. Occasionally a few lawbooks were imported for public use," but there was seldom much need to consult them in the course of a trial. The questions were simple, and the justice rude.

The legal profession can hardly be said to have had an existence in the English colonies in America during the seventeenth century. No profession can long The early maintain a footing in any community unless its American bar. members can earn their living by it. In the early days of the colonial era there was little form or regularity in what they had of judicial procedure, and the pecuniary interests involved were seldom large. As any important controversies

1 Palfrey, Hist. of New England, I. 307; Commonwealth v. Roxbury, 9 Gray's (Mass.) Reports, 451, 480.

2 Will and Doom, or the Miseries of Connecticut by and under an Usurped and Arbitrary Power. Conn. Hist. Soc. Collections, III. 69, 112,131, 232.

8 Thus in 1647 the General Court of Massachusetts voted to import for the use of the magistrates two copies of each of the following books: Coke on Littleton, New Terms of the Law, Dalton's Justices of the Peace, Coke's Reports, Coke on Magna Charta, Books of Entries. Mass. Col. Rec., II. 212. See also a reference in 1650 to the work known as Lex Mercatoria as an authority concerning maritime affairs. Id., III. 193.