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A Constitutional History of the United States
Chapter XI - Early State Constitutions
by McLaughlin, Andrew C.
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The Declaration of Independence involved the necessity of establishing
state governments. Separation from the mother country meant that the colonies
were no longer colonies in the British empire, but independent states. The
early stages of the process of transition were distinctly a part of the
conflict with Britain. The Revolutionary movement, while it was still only a
rebellion and before there was any definite intention to break with Britain
altogether, necessarily produced some form of extra-legal government; royal and
proprietary governors were ignored or steps were taken to overcome or
circumvent their power. Provincial congresses or conventions or committees
chosen in the various communities contrived, as best they might, to get their
way. The growth of the power of these conferences, especially of the committees
having in charge the whole management of resistance, was as a rule gradual; but
it began before the fourth of July, 1776.
The Continental Congress was naturally interested in the establishment
of substantial governments in the rebellious colonies. Some of the members were
at an early day quite aware of what such an establishment would imply, and if
they were eager for independence, they were keenly desirous of seeing the
colonies enter upon the job of fashioning governments capable not only of
resistance but of doing the work of self-dependent commonwealths.
The first important step was taken by the provincial congress of
Massachusetts. That colony sent a formal letter (dated May 16, 1775) to the
Continental Congress asking for explicit advice "respecting the taking up and
exercising the powers of civil government," and promising to submit to such "a
general plan" as Congress might direct for the colonies.[1] Early in
June Congress answered the inquiry: inasmuch as no obedience was due to the act
of Parliament for altering the charter, and no obedience to a governor or
lieutenant-governor endeavoring to subvert the charter, those officers should
be considered as absent and their offices vacant; it was resolved that "in
order to conform, as near as may be, to the spirit and substance of the
charter, it be recommended to the provincial Convention, to write letters to
the inhabitants of the several places, which are intituled to representation in
Assembly, requesting them to chuse such representatives, and that the Assembly,
when chosen, do elect counsellors; which assembly and council should exercise
the powers of Government, until a Governor, of his Majesty's appointment, will
consent to govern the colony according to its charter."
In the latter part of the same year New Hampshire sent a somewhat
similar request, which was answered in substantially the same
manner.[2] Soon afterwards, like recommendations were made to South
Carolina [3] and Virginia.[4] In these three cases,
however, the advice of Congress, more clearly than in the reply to
Massachusetts, brought out the idea of an independent representative body
capable of setting up a government; it more nearly approached the conception of
a representative constitutional convention. Indeed, that idea in its
fundamentals is plain.[5]
The next spring (May, 1776) a resolution with a very expressive and
conclusive preamble was passed in Congress. It declared it necessary that the
exercise of every kind of authority under the Crown should be totally
suppressed, that all of the powers of government should be exerted under the
authority of the people, and that it be recommended to the assemblies and
conventions of the united colonies, where no government sufficient to the
exigencies of their affairs had been established, to adopt such government as
should, in the opinion of the representatives of the people, best conduce to
the happiness and safety of their constituents and of America in
general.[6] Thus nearly a year had passed between the advice to
Massachusetts and the general recommendation to the colonies. The hesitant
might still persuade themselves that the governments established were to be but
temporary, lasting only until the unfortunate dispute with the mother country
should be settled, but this general advice meant that the colonies were
henceforth to be free and independent states.
In the transmutation of colonies into commonwealths the principles on
which these new states were to be founded were a matter of transcendent
importance. And, as principles have reality and stability only when made
actual, the method and the machinery whereby the states were established and
organized are of signal significance. Many times in the past, writers on
government had asserted that the people were the original possessors of power
and the source of governmental authority. Such declarations had been announced
as the corner stone of the American argument against Britain. Now that the
Americans had the opportunity to set up governments, how nearly would their
conduct accord with this doctrine? An intelligent people, a reading people, a
people well-schooled by orators, pamphleteers, lawyers, and preachers, and
instructed by the political discussions of a decade, had the chance to rear
governments and to fix the limits of their power by legal and authoritative
commandments. Adams tells us that he declared that the people "must be all
consulted, and we must realize the theories of the wisest writers, and invite
the people to erect the whole building with their own hands, upon the broadest
foundation." [7] The principles of political philosophy were to be
put to the test.
What then was necessary if the theories of "the wisest writers" were to
be actualized with an exactness they themselves could not have conceived? It
was necessary (1) to bring into political action the main body of the people;
(2) to produce an organ representing the people, the duty of which would be to
describe the government and to define, if need be, the limits of its power; (3)
to give the people, the original of power, the opportunity of passing
definitely upon the proposed constitution and of bestowing upon the government
the legal right to govern; (4) so to proceed that the body drawing up the
constitution should be sharply distinguished from the legislature — the
legislature acting as a temporary revolutionary government and the legislature
to be reëstablished under the new system; this was necessary because there
must be no obscuring the derivative power of government as distinguished from
the inherent power of the people. The body that drafted the constitution must
not, therefore, legislate in the ordinary sense of the word. If the convention
should not only draft a constitution but also act as a legislative body, then
legislation and the constitution might appear to be on the same plane; the
convention must not act as if it were a government; it must in all respects
consider itself as a body representing the people for the specific purpose of
preparing a government. If the constitution emanated from the convention and
was not formally ratified by the people, the derivative character of the
government might not stand forth so adequately and conclusively that even the
blind could see. Only by the most careful observance of process in accord with
elementary principles could it be made perfectly evident that to secure life,
liberty, and the pursuit of happiness governments are instituted among men and
derive their just powers from the consent of the governed.[8]
The constitutional convention is a familiar American institution, so
familiar, in fact, that we find difficulty in realizing its fundamental
character. Use of the process of representation for gathering a body of people
with authority to draft a constitution appears so simple that we naturally
think of the representative convention, the primary body subject only to the
people themselves, as if the men of the Revolution created it without engaging
in serious perplexity. But of course such was not the case; there was
perplexity as well as failure in some cases to adopt methods plainly
demonstrating the theory of popular government. But the statesmen of the day
had the advantages of experience with representation as a working system and
did not need to rely on theory alone. Even the provincial congresses and
gatherings which had assumed control in the various colonies, though generally
very irregularly constituted and irregularly chosen, were at the worst
ostensibly representative; and thus the idea of a body based on systematic
representation rather naturally adapted itself, under the wise guidance of
Congress, to the existing practices.
In Massachusetts, after much discussion, the method which was followed
showed so perfectly the theory of popular power and the nature of a
constitution, that the work of that state merits our special attention although
the constitution was the last of the strictly Revolutionary
constitutions.[9] In May, 1777, the body which, formed on the
analogy of the old charter, was the revolutionary but also the actual
government of the state, recommended that the towns at the coming election
empower their representatives to take part as members of a constituent
convention for making a constitution which should be submitted to the towns for
adoption and be instituted by the General Court, if approved by two-thirds of
the freemen of the state over twenty-one years of age.[10] Upon the
authorization of the towns thus secured, the assembly resolved itself into a
convention, drew up a constitution and submitted it to the people (March 4,
1778). It was not accepted. There were several objections to it; especially
noteworthy was the objection based on the absence of a bill of
rights.[11]
If one wishes to see the literalness with which the men of those days
took the theories of the origin of government in compact and the original
possession of power by the people, he should read the Essex Result, the
product of a convention of Essex County but largely the work of Theophilus
Parsons.[12] "Over the class of unalienable rights", the
Result declared, "the supreme power hath no controul, and they ought to
be clearly defined and ascertained in a BILL OF RIGHTS,
previous to the ratification of any constitution. The bill of rights should
also contain the equivalent every man receives, as a consideration for the
rights he has surrendered." [13]
After the defeat of the constitution in 1778, steps were taken to
prepare another and to follow methods in all respects theoretically correct.
The temporary government asked the voters to vote on two questions: did they
desire a new constitution, and if so, would they empower their representatives
to summon a convention for the sole purpose of framing one? As two-thirds of
the towns were favorable, the towns were then called upon to select delegates
who should form a constitution to be established by the vote of two-thirds of
the free male inhabitants twenty-one years old, acting in town-meetings called
for that purpose.[14] The convention thus provided for met
(September, 1779), framed a bill of rights and a constitution, submitted its
handiwork to the people, then adjourned and awaited the popular verdict. In due
time the convention once again assembled, canvassed the votes, decided that the
constitution was adopted, and arranged for the inauguration of the new
government.[15] The process was perfect; no one could doubt that the
people were the source of governmental authority, that their will was superior
to the government which was their creature, or that the government and the
state were not the same.
This constitution of 1780 was carefully worked out with patient thought
and under able, scholarly guidance. It conclusively ended the struggle,
centuries old, of enmity between government and the people; the old enemy,
government, was made the servant of the politically-organized
people.[16] The question for the future was whether the people
possessing power would wisely use it and develop laws and political processes
suitable to new needs.
The methods of Massachusetts have been here presented in some detail
because of the precision with which the work was done. We must content
ourselves with a summary of the action of other states. The Virginia
constitution, which was drawn up before the adoption of the Declaration of
Independence, was framed by a convention acting as the temporary revolutionary
government but not expressly authorized to undertake the task of
constitution-making. This was true also of South Carolina (1776) and New
Jersey. The congresses or conventions of all the other states were expressly
authorized to act, but these bodies were not chosen for the single
purpose of framing constitutions. When constitutions were put into operation
without being submitted to the people, there was a good deal of objection in a
number of the states to the establishment of a constitution without direct
popular sanction.[17]
A word on the subject of submission of the constitution to the people is
appropriate here, though we must look into the decades after the Revolution for
the development of the practice. Only gradually was the principle of submission
taken up by the various states; the first state outside of New England to take
this step was New York, in 1821. By the time of the Civil War, the practice
seemed to be fairly well established. In a later period, however, various
constitutions were drawn up and established without popular ratification. For
example, the Mississippi constitution of 1890, the first of a series of
constitutions drawn up by southern conventions, the purpose of which was to get
rid of certain inconveniences of the constitutions forced upon the states
during Reconstruction,[18] was not submitted.
The Revolutionary constitutions were framed in time of war, and the
strange fact is, not that they failed in some particulars to carry out the
perfect theoretical procedure, but that they so nearly approached it. Although
in a number of the states there was a confusion of legislation and
constitution-making, a confusion that necessarily obscured in some degree the
fundamental distinction between ordinary legislation and the constitution as
the supreme will of the state, the necessity of popular authorization seems to
have been pretty fully recognized and the nature of a constitution, if not the
full qualities of a convention, was in a general way clearly presented.
Although in the whole process of constitution-making there was a fairly
complete recognition of the principles of popular government and of
Revolutionary doctrines — more plainly so in some states than in others
— there was not much in the way of sentimental theorizing unaffected by
experience; and the institutions which were actually established were in large
measure essentially those to which the people were accustomed. The
constitutions provided for a governor and generally for a bicameral
legislature. Pennsylvania and Georgia established unicameral legislatures, but
soon fell into line with the practice of the other states.[19] The
old colonial council was reëstablished in some cases; in some of the
states a board of censors was provided for. Suffrage was limited in various
ways, so variously in fact that no generalization is possible; and there were
also sundry qualifications for holding important offices — not only
property qualifications but religious and theological as well.[20]
These early constitutions show a general distrust of the executive and,
relatively, a confidence in the legislative — another direct product of
colonial experiences. Some decades had to pass before executive authority was
widened. Compared with modern constitutions, the early documents were brief.
Their brevity can be easily accounted for: the people trusted in the ordinary
rectitude and good sense of the legislature; they had not as yet learned the
need of embodying in the constitution detailed directions and explicit
restrictions; they had not gained that confidence in themselves which at a
later day led them to place in their constitutions various provisions not of a
fundamental character, but rather in the nature of statutory enactments. Life
was comparatively simple and comparatively free from social and economic
problems; the later development of constitutions mirrors the increasing
complexity of the social and economic order.
Some of the early constitutions did not contain provisions for
amendment, and the omission is not easily explained; certainly, if the right of
revolution were to be legalized, there should be legal means for altering the
form and the foundation of government. The failure to make such provision is
probably attributable to haste and partly to the attention given by the framers
to the fundamental character of their work; they did not realize how quickly
and how often the need of change would arise.[21]
Including Vermont, which began to assume and assert statehood in the
period under review, eight states adopted bills of rights (New Hampshire,
Vermont, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, and North
Carolina).[22] They accept the theory that government rests on
consent and exists for the protection of rights. The Virginia bill of rights,
largely the work of George Mason, contains the same philosophy as the
Declaration of Independence and it was passed in the state before the
Declaration was passed. It announces the doctrine of "inherent" rights of the
people and the doctrine that all power is derived power. It then outlines in a
masterly way the principles upon which free government rests. Associated with
the announcement of the fundamental principle that power springs from the
people and that the people have the right to alter and abolish government are
certain other declarations of secondary rather than primary importance; they
are of service in maintaining the more elementary and fundamental rights. The
announcement of religious liberty in the Virginia bill is especially
significant as an indication of the liberalizing effect of the Revolutionary
movement. The first and most elementary principle of bills of rights is that
men possessed rights before government was formed. Though it is now an
elementary principle of constitutional law that the legislature of a state in
the union has all power not forbidden either expressly or by implication, no
man in appearing before a court of justice needs to set forth the essentials of
individual liberty as a grant made to him by government; human rights are
supposed to have existed before the establishment of government or state.
One well-known principle of the American constitutions is the separation
of the powers of government. The legislative, executive, and judicial branches
of government are distinct, and each branch is possessed of its peculiar and
particular authority. We have carried that principle to an extent not known to
the modern states of Europe; it is applicable to both our state and national
governments; countless questions involving the interpretation and the
application of the principle have come before the courts for decision. When the
federal Constitution was framed, it seems to have been taken for granted as an
elementary doctrine that separation of powers was one of the main safeguards of
liberty. The idea was associated with the need of checks and balances which
would keep each department within its proper sphere. Not all of the early state
constitutions [23] plainly provided for separation, nor did the
federal Constitution explicitly do so, but only by fairly conclusive
implication.
The origin of this principle is not easily determined. Like many others,
it is in some respects of hoary antiquity. The influence of Locke is
probable.[24] In this matter, as in others, the Americans carried
doctrine to the logical ultimate. The most influential writer was Montesquieu,
whose Esprit des Lois was known in Revolutionary days. John Adams, a
lover of checks and balances, seems to have been affected by James
Harrington.[25] But American experience strengthened, if it did not
create, the principle. Men do not commonly — if they are wise, and the
early American statesmen cannot be denied the attribute of wisdom —
enthusiastically adopt a disembodied idea from beyond the field of practical
acquaintanceship. The colonists had not lived under a system in which
separation of the powers was fully recognized; but they had been engaged in a
series of debates and disputes concerning the extent of the authority of
different branches of government. It is true that in some instances, perhaps
commonly, they were really desirous of asserting the supremacy of the
legislative branch, but the idea of separation and distinction was in some
instances brought fairly clearly to light.[26]
Associated with the doctrine of separation of powers is the principle
that granted power cannot be delegated. And this principle brought up in the
course of time a good many constitutional problems. Important as the principle
of separation is, constitutions do not provide for complete isolation of the
departments of government. For example, the fact that a bill requires the
signature of the executive, unless it is passed over his veto, gives him a
participation in legislation; and executive influence over legislation has
greatly increased in the passing decades.
If it be asked why people were so unwise — and the question is
often asked — as to hamper government by division of authority and by
checks and balances, the answer is simple: such was the kind of government the
leaders and probably men in general wanted. Who are a free people? Those who
live under a government so constitutionally checked as to make life, liberty,
and property secure. That would have been the explicit answer of the
Revolutionary days. In some ways the most marked development of the idea of
popular government from that time to this has been the development of the
belief that governments, strongly directed by popular opinion, should be
competent and active — a change from the belief that governments should
not do things to the belief that they should do things.
[1] The letter, in the form of a resolution, was presented to
Congress June 2. An essential paragraph is as follows: "We are happy in having
an opportunity of laying our distressed state before the representative body of
the continent, and humbly hope you will favour us with your most explicit
advice respecting the taking up and exercising the powers of civil government,
wch we think absolutely necessary for the Salvation of our country
and we shall readily submit to such a general plan as you may direct for the
colonies, or make it our great study to establish such a form of government
here, as shall not only most promote our advantage but the union and interest
of all America." Journals, II, p. 77. This was a very wise and shrewd
approach. It took for granted that the matter was of continental concern; it
was becomingly submissive to the opinion of Congress, and it indicated the
desirability of a general plan for "America". But the general plan had to wait,
for not all the colonies were so far along the road to independence as was
Massachusetts.
[2] Laid before Congress October 18, 1775. Answered November
3, 1775.
[3] November 4, 1775.
[4] December 4, 1775.
[5] "Resolved, That it be recommended to the
provincial Convention of New Hampshire, to call a full and free representation
of the people, and that the representatives, if they think it necessary,
establish such a form of government, as, in their judgment, will best produce
the happiness of the people, and most effectually secure peace and good order
in the province, during the continuance of the present dispute between G[reat]
Britain and the colonies."
[6] In the above sentences the resolution of May 10 and the
preamble adopted on May 15 to accompany the resolution are abbreviated and
woven together. We can see in these resolutions the basis of the conversation
reported by John Adams: "Mr. Duane called it to me, a machine for the
fabrication of independence. I said, smiling. I thought it was independence
itself, but we must have it with more formality yet." John Adams, Works
(C. F. Adams, ed.), III, p. 46.
[7] Ibid., III, p. 16.
[8] These ideas and the elements of the process flowed
naturally and inevitably from the whole theory of the compact-origin of
government as set forth by "the wisest writers" and announced over and over
again during the preceding century by the New England preachers. How well Adams
and others knew written pronouncements concerning a constitutional convention
which were put forth in England in the middle of the seventeenth century, we do
not know. They knew the theory, and some of them probably knew Sir Henry Vane's
Healing Question. They may not have known an interesting document of
that earlier century which very distinctly presented the fundamental character
of a constitutional convention. I refer to a plan drawn up in 1648: "That some
persons be chosen by the Army to represent the whole Body; and that the
well-affected in every County (if it may be) chuse some persons to represent
them: And those to meet at the Head-Quarters.
"That those persons ought not to exercise any Legislative power, but
onely to draw up the foundations of a just Government, and to propound them to
the well-affected people in every County to be agreed to: Which Agreement ought
to be above Law; and therefore the bounds, limits, and extent of the peoples
Legislative Deputies in Parliament, contained in the Agreement to be drawn up
into a formall contract, to be mutually signed by the well-affected people and
their said Deputies upon the dayes of their Election respectively...." Legal
Fundamentall Liberties, p. 34. Quoted in Pease, op. cit., p. 261.
Notice the character of the body to meet at headquarters and the popular
ratification by signing. It appears that deputies elected to Parliament under
this fundamental instrument were, when elected, to sign, a provision
similar to our provision requiring officers elected as well as others to take
oath to abide by the Constitution.
[9] In New Hampshire, where the general methods of operation
were likely to resemble those of Massachusetts, a constitution was adopted in
1776 by a body not chosen for that special task and that alone. In 1778 a
convention properly constituted drafted a constitution which was defeated by
popular vote. Other conventions met and framed constitutions which met with a
like fate. One was finally approved in 1783.
[10] H. A. Cushing, History of the Transition From
Provincial to Commonwealth Government in Massachusetts (Columbia University
Studies in History, etc., VII, no. 1), p. 207.
[11] There is probably no need of attempting to decide
exactly when and where the idea of the character of the full-fledged
constitutional convention came to light. We have already noticed the appearance
of the idea in England over a hundred years before the American states acted.
The origin of the institution, perfectly envisaged, has been attributed to
Concord, Massachusetts, by R. S. Hoar ("When Concord Invented the
Constitutional Convention," Boston Transcript, July 3, 1917). The
resolutions of the town-meeting (October 21, 1776) are full of interest: they
declare the legislative is no body proper to form a constitution — "first
Because we conceive that Constitution in its proper Idea intends a system of
principals established to secure the subject in the Possession of, and
enjoyment of their Rights & Privileges against any encrouchment
[sic] of the Governing Part. Secondly Because the same Body that forms a
Constitution have of Consequence a power to alter it — thirdly Because a
Constitution alterable by the Supreme Legislative is no security at all to the
subject against the encrouchment [sic] of the Governing part on any or
on all their Rights and Privileges." It is quite plain that such principles
underlie the great body of American constitutionalism. Edward Rutledge
suggested a special congress of new members to draw up articles of
confederation (August 19?, 1776). Letters of Members of the Continental
Congress (E. C. Burnett, ed.), II, p. 56. It would seem, however, that the
reason was chiefly grounded on the fact that Congress was busy.
[12] Cushing, op. cit., pp. 221-226. Concord cast 111
votes against the constitution and none in its favor. Hoar, op. cit.
[13] Result of the Convention of Delegates Holden at
Ipswich in the County of Essex, p. 15.
[14] Cushing, op. cit., pp. 227-229. It cannot be said
that there is anything sacred in the proportion of two-thirds.
[15] As to the difficulty in determining the full meaning and
effect of the returns from the towns, see S. E. Morison, "The Struggle Over the
Adoption of the Constitution of Massachusetts, 1780", Mass. Hist. Society
Proceedings, L, p. 396 ff. (October, 1916-June, 1917). He says, "'...
the plain people of the state, in town meeting assembled, were able to point
out the principal flaws that time and experience would find in the constitution
drafted by John Adams, and adopted by a Convention that included among its
members Samuel Adams, James Bowdoin, Theophilus Parsons, John Lowell, George
Cabot, and Robert Treat Paine.' "
[16] This statement may appear an exaggeration in light of
the fact that there were qualifications for voting, qualifications for holding
office, religious provisions, and other matters in the constitution that needed
to be altered in later years; the constitution of 1780 was not altogether in
accord with twentieth-century democracy. But nevertheless, one does not mistake
in seeing in this constitution and the method of its adoption the logical end
of a long epoch; men had found a manner of creating a government and
making it subject to their will; they had found a method not only of granting
power but of preserving liberty. As far as political liberty was concerned, the
government was in the people's hands.
[17] "Jefferson always denied the power of the convention to
adopt a permanent frame and intended that his draft, if adopted, should be
referred to the people." Lingley, op. cit., p. 174. "Resolutions in New
York and North Carolina expressed strongly the demand for a popular voice in
the approval of constitutions, but here too it is probably the case that the
popular participation was less than might have been desired because of the
critical condition of affairs and of the necessity for prompt action. Even
under these conditions action was taken in a number of states which amounted to
an informal submission of constitutions to the people (Maryland, Pennsylvania,
North Carolina, South Carolina, 1778), but the proposed Massachusetts
constitution of 1778 is the first instrument of government which was formally
submitted to a vote of the people." W. F. Dodd, "Constitutional Convention,"
Cyclopedia of American Government, I, p. 425.
[18] South Carolina, 1895; Louisiana, 1898; Virginia, 1902.
The Delaware constitution of 1897 was not submitted, and the Kentucky
constitution of 1891 was altered by the convention after it had been ratified.
See W. F. Dodd, The Revision and Amendment of State Constitutions, pp.
67-68. The author, after a careful examination of precedents, points out that
the "more usual procedure" (not universal practice) includes three popular
votes: (1) the vote of the people authorizing a convention; (2) the election by
the people of delegates; (3) the submission of the constitution for adoption or
rejection. Ibid., p. 71. It should be noticed, however, that he brings
out the fact that constitutions are "elaborated by constitutional conventions
chosen for this express purpose, and distinct both in organization and election
from the ordinary legislative bodies." Ibid., pp. 70-71. Amendments not
formulated by conventions are frequently made by popular vote.
[19] Pennsylvania in 1790. Georgia in 1789.
[20] Something is said about this in a later chapter of this
work.
[21] "The absence of provision for alteration in the
constitutions of 1776-77, should not be taken as an indication that their
framers thought the regular legislatures competent to alter or establish
constitutions, but rather that they did not consider the matter at all." Dodd,
The Revision and Amendment of State Constitutions, p. 27.
[22] For the Delaware bill of rights, see Am. Hist.
Rev., III, p. 641 ff. For illustrations of the prevalence of compact
thinking, see the preamble of the Massachusetts Constitution, 1780, the
preamble of the New Jersey constitution, 1776, and the Maryland declaration of
rights, 1776.
[23] "Of the twelve commonwealths which, prior to 1787, had
adopted constitutions, six had inserted ... a general distributing clause...."
William Bondy, The Separation of Governmental Powers (Columbia
University Studies in History, etc., V, no. 2), p. 19. Most states now
have distributing clauses, and in all the general principle is recognized.
[24] Locke spoke of three powers — legislative,
executive, and federative — but did not emphasize the necessity of
separation on the lines known to our constitutions.
[25] See H. F. Russell Smith, Harrington and His Oceana a
Study of a 17th Century Utopia and Its Influence in America, especially pp.
63-66, 192-194.
[26] "Indeed, the doctrine of the separation and balance of
powers was proclaimed in Massachusetts before the Esprit des Lois saw
the light. In 1742 the house of representatives in Massachusetts rejected the
demands of Governor Shirley for a permanent salary on the ground that it 'would
greatly tend to lessen the just weight of the other two branches of the
government, which ought ever to be maintained and preserved; especially since
the governor has so great authority and check upon them.'" W. S. Carpenter,
"The Separation of Powers in the Eighteenth Century," Am. Pol. Sci.
Rev., XXII, p. 37.
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