State Governments During The Revolution
Organization of state governments.—As resistance to British authority intensified during 1775, the colonies took steps to organize for resistance. The colonial governors were forced to leave and the committees of safety assumed temporary executive functions. In most of the colonies revolutionary conventions were called which took over the legislative power until it became apparent that the difficulties with Great Britain could not be settled. As it grew more and more evident that the war was to be fought for independence, the conventions took steps to organize state governments. Several of them asked advice concerning such action from the Continental Congress, and that body finally advised all the colonies to proceed on the assumption that they no longer owed allegiance to the crown. The constitutional convention introduced a new principle in the theory of the state. Up to this time governmental authority had rested in England. Henceforth the powers of sovereignty were to emanate from the will of the people, the constitutional convention being the embodiment of the sovereign will.
Type of state governments.—In the formation of governments the states were guided by experience in colonial statecraft. The new constitutions disclosed the influence of the struggle with Great Britain, the framers seeking to protect the commonwealths from the possibility of encroachment of the executive at the expense of the legislative departments. The influence of the political philosophy which insisted that the separation of the departments of government was the safeguard of popular rights was also apparent in the new constitutions. Although they displayed a marked divergence on minor points, in general a common type of government prevailed. In most of the states the legislative department was in two parts, a lower and an upper house; the lower, usually elected for a year, represented the people at large, and the upper, serving for longer periods, represented the wealthier classes. In all but one state a property qualification was required for voters and representatives, and in most cases the property qualification was higher for members of the upper chamber. There was no uniformity in designation, the lower chamber being variously called the house of representatives, house of commons, or assembly; the upper house was usually called the legislative council, but in Virginia it was known as the senate, a designation afterward commonly adopted. The executive was usually weak, being vested either in a governor with limited power or in a small group. So well adapted to the needs of a state were the colonial charters of Connecticut and Rhode Island, that they continued to use their charters as constitutions for many years, merely substituting the authority of the people for that of the king.
Variations from type.—Several of the state constitutions contained unusual features. In Pennsylvania the radical convention in 1776 framed a constitution which provided for a legislature of one chamber and an executive council which could not veto an act of the assembly. Every seven years a council of censors was to be chosen by the voters to see that the constitution had not been violated. By a two-thirds vote the censors could summon a convention to amend the constitution. Georgia also set up a unicameral legislature. The Virginia constitution of 1776 contained a declaration of independence. It also provided that all bills must originate in the lower house and that money bills could not be amended by the senate. A privy council of eight members was chosen by a joint ballot of both houses. This body and the two houses selected the governor. The South Carolina constitution of 1778 provided for the election of the upper house by the people and the governor was deprived of the veto power. By the New York constitution of 1778, the governor was elected by the people, but he had neither appointive nor veto power, those functions being exercised respectively by a council of appointments chosen from the senate by the assembly, and by a council of revision composed of the governor, chancellor, and two or more judges of the supreme court. Objections raised by the council of revision could be defeated by a two-thirds vote of both houses. The first constitution of Massachusetts provided for a legislature of two houses, the upper chamber acting as a multiple executive. In 1780 a new constitution was accepted by the people. This provided that the governor be given military powers and the appointment of judges. He was to be advised by a council of nine elected from the senate by both houses.
Selection of the judiciary.—Divergences appeared in the methods of selecting judges. In Connecticut and Rhode Island they were appointed annually by the assemblies. In Georgia the chief justice was appointed by the assembly, but the people elected the county judges annually; in New Jersey, Delaware, and Pennsylvania the assemblies chose the judges for seven years; in Massachusetts, New York, and Maryland the governor and council appointed the judges who held office during good behavior; in other states the legislatures appointed them for varying terms.
The courts.—The states established superior tribunals which were authorized to review and correct decisions of inferior courts. In Georgia the county courts, when presided over by the chief-justice, acted as a final court of appeal. In New Jersey the governor and council constituted the highest appellate tribunal. In Virginia the constitution provided for a court of appeals which passed upon the constitutionality of laws and heard appeals. In Maryland and South Carolina the appellate courts were composed of the presiding officers of the district courts. In the other colonies the supreme court fulfilled the same function. The colonial system of county courts to try the smaller civil cases, and courts of session, composed of justices of the peace, for trial of petty criminal cases were retained.
English law the basis of American jurisprudence.—The English common-law forms of writs and legal process were continued with all their technicalities, a usage which has been one of the stumbling blocks in the attempts to simplify legal methods in the United States. "Either by the constitutions or by legislative enactments, English common law, and all those English statutes hitherto recognized and acted upon in the colonies respectively, were made the basis of state jurisprudence. The force of law was also continued to all existing colonial statutes until repealed or altered, except in South Carolina, where a particular enumeration and reënactment was made of the colonial statutes intended to be recognized."
The revolutionary state of Vermont.—In the Green Mountain region a new state was in the making. There New York claimed jurisdiction but her authority had never been established and in April, 1775, the inhabitants of the mountain country held a convention, eventually drew up a constitution, and asked Congress to recognize Vermont as a state. New York succeeded in defeating the movement in Congress, but the Vermonters, nothing daunted, proceeded to organize their government. The new revolutionary state soon became embroiled in disputes with New Hampshire and Massachusetts. These and the continued opposition of New York caused Congress to delay recognition, and Vermont was not formally admitted to the union until 1791, but to all intents and purposes it was a sovereign state from 1775.
Attempts at Western State-Making.—In the course of the Revolution, likewise, the settlements beyond the Alleghanies were trying experiments in state-making. The Watauga Association in eastern Tennessee, the Transylvania government in Kentucky, and the Nashborough, Association are all examples. These western communities reverted to the compact theory of government, and their experiences illustrate the democratic tendencies of the frontier. As yet, however, the communities were too weak to succeed in the midst of conflicting elements and each reverted for a time to the subordinate position of a county of the older state.
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