CHAPTER V

The development of state constitutions

llustrates our political progress.

Qualifica

tions for senators

THE DEVELOPMENT OF STATE CONSTITUTIONS

THE extent to which the social and political institutions of the American people have departed from the models set by the statesmen of the eighteenth century is nowhere more clearly revealed than in the development of state constitutions. In them the establishment of political democracy is recorded, and numerous legal rules for meeting practical problems are laid down. In short, they are, as Mr. Bryce points out, "a mine of instruction for the natural history of democratic communities." 1

31. Early State Constitutions

The belief of our early constitution-makers that stable government could be founded only on the rule of the propertied classes, especially the freeholders, is fully demonstrated in the first state constitutions, the character of which may be fairly illustrated by these extracts from the fundamental laws of Georgia and Maryland:

Extract from the Georgia Constitution of 1789

ARTICLE I

Section 3. No person shall be a member of the senate who shall not have attained to the age of twenty-eight years, and who shall not have been nine years an inhabitant of the United States, and three years a citizen of this State; and shall be an inhabitant of that county for which he shall be elected, and have resided therein six months immediately preceding his election, and shall

1 For an extract illustrating the process of amending state constitutions, see below, p. 411.

be possessed in his own right of two hundred and fifty acres of land, or some property to the amount of two hundred and fifty pounds.

and

repre

Section 7. No person shall be a member of the house of representatives who shall not have attained to the age of twenty-one sentatives. years, and have been seven years a citizen of the United States, and two years an inhabitant of this State; and shall be an inhabitant of that county for which he shall be elected, and have resided therein three months immediately preceding the election; and shall be possessed in his own right of two hundred acres of land, or other property to the amount of one hundred and fifty pounds.

ARTICLE II

election

Sec. 2. The house of representatives shall, on the second day The of their making a house, in the first, and in every second year of the thereafter, vote by ballot for three persons; and shall make a list governor. containing the names of the persons voted for, and of the number of votes for each person; which list the speaker shall sign in the presence of the house, and deliver it in person to the senate; and the senate shall, on the same day, proceed, by ballot, to elect one of the three persons having the highest number of votes; and the person having a majority of the votes of the senators present shall be the governor.

The

Sec. 3. No person shall be eligible to the office of governor governor's who shall not have been a citizen of the United States twelve years, qualificaand an inhabitant of this State six years, and who hath not at- tions. tained to the age of thirty years, and who does not possess five hundred acres of land, in his own right, within this State, and other species of property to the amount of one thousand pounds sterling.

Extract from the Maryland Constitution of 1776

II. That the House of Delegates shall be chosen in the following manner: All freemen, above twenty-one years of age, having

Elections to house.

the lower

Petty restrictions

should not hinder the use of the great powers.

The vast

revenue

operations should be facilitated.

to the other, to depend on a fair construction of the whole instru

ment.

Although, among the enumerated powers of government, we do not find the word "bank," or "incorporation," we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. It may, with great reason, be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depend, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means.

Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require, that the treasure raised in the North should be transported to the South, that raised in the East conveyed to the West, or that this order should be re

Is that construction of the Constitution preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction (unless the words imperiously require it) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means? If, indeed, such be the mandate of the Constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be employed.

means may

We think the sound construction of the Constitution must allow Appropriate to the national legislature that discretion, with respect to the means be used for by which the powers it confers are to be carried into execution, legitimate which will enable that body to perform the high duties assigned ends. to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.

why the

did not

mention

corporations.

That a corporation must be considered as a means not less Reasons usual, not of higher dignity, not more requiring a particular Constitution specification than other means, has been sufficiently proved. If we look to the origin of corporations, to the manner in which they have been framed in that government from which we have derived most of our legal principles and ideas, or the uses to which they have been applied, we find no reason to suppose that a constitution, omitting, and wisely omitting, to enumerate all the means for carrying into execution the great powers vested in government, ought to have specified this. Had it been intended. to grant this power as one which should be distinct and independent, to be exercised in any case whatever, it would have found a place among the enumerated powers of the government. But being considered merely as a means, to be employed only for the purpose of carrying into execution the given powers, there could be no motive for particularly mentioning it.

may be

any other

If a corporation may be employed indiscriminately with other A banking corporation means to carry into execution the powers of the government, no particular reason can be assigned for excluding the use of a bank, used as if required for its fiscal operations. To use one, must be within well as the discretion of Congress, if it be an appropriate mode of execut- corporation. ing the powers of government. That it is a convenient, a useful, and essential instrument in the prosecution of its fiscal operations, is not now a subject of controversy. All those who have been concerned in the administration of our finances, have concurred in representing its importance and necessity; and so strongly

F

The

governor chosen by

joint ballot.

The governor's council.

a free-hold of fifty acres of land, in the county in which they offer to vote, and residing therein and all freemen, having property in this State above the value of thirty pounds current money, and having resided in the county, in which they offer to vote, one whole year next preceding the election, shall have a right of suffrage, in the election of Delegates for such county: and all freemen, so qualified, shall, on the first Monday of October, seventeen hundred and seventy-seven, and on the same day in every year thereafter, assemble in the counties, in which they are respectively qualified to vote, at the courthouse, in the said counties; or at such other place as the Legislature shall direct; and, when assembled, they shall proceed to elect, viva voce, four Delegates, for their respective counties, of the most wise, sensible, and discreet of the people, residents in the county where they are to be chosen, one whole year next preceding the election, above twentyone years of age, and having, in the State, real or personal property above the value of five hundred pounds current money; and upon the final casting of the polls, the four persons who shall appear to have the greatest number of legal votes shall be declared and returned duly elected for their respective counties.

XXV. That a person of wisdom, experience and virtue, shall be chosen Governor, on the second Monday of November, seventeen hundred and seventy-seven, and on the second Monday in every year forever thereafter, by the joint ballot of both Houses (to be taken in each House respectively) deposited in a conference room; the boxes to be examined by a joint committee of both Houses, and the numbers severally reported, that the appointment may be entered; which mode of taking the joint ballot of both Houses shall be adopted in all cases. . . .

XXVI. That the Senators and Delegates, on the second Tuesday of November, 1777, and annually on the second Tuesday of November forever thereafter, elect by joint ballot (in the same manner as Senators are directed to be chosen) five of the most sensible, discreet, and experienced men, above twenty-five years of age, residents in the State above three years next preceding the