no game preserves or game-keepers in the Ameri
can forests.
The "frontier" has now disappeared; and the
loss of it is a calamity. It meant cheap or free
lands for the landless adventure for the restless,
a new chance in life for the beaten, a school for
the development of a free, unconventional Ameri
can manhood and womanhood; the exercise in gov
ernment and public affairs of our ambitious young
men the healthy distribution of population the
preservation of the revolutionary type of men; for
the men of '76 were frontiersmen.
The Indian also mightily stimulated the commu
nity idea. Organization, the next lesson in our
civil development, he enforced under frightful pen
alties. Every man a neighbor, and every man his
THE NATIONAL CONSTITUTION 17
neighbor's keeper, was the condition of existence
in the feeble and exposed settlements. The town
meeting for consultation, and the village block
house for defense and safety, were the kindergar
tens of the republic. In the town meetings the
man who had something to say was heard, with
out waiting for his "betters" though he were
only the cobbler or a truant boy who had seen the
prints of moccasins in the adjacent woods.
Life and living were reduced to their simplest
elements; and, in the northern colonies, the long,
severe winters, and the ungenerous soil, condi
tioned both upon industry and an economy that
was near to parsimony. Men who conducted their
households upon lines of the strictest economy
were sure to be watchful of public expenditures,
and resentful of the smallest exaction that was not
supported by a public necessity, and laid by law
ful authority.
Public assemblages of the body of the people, an
indispensable incident of free government, were
practically coincident in time with the landing of
the colonists. They did not have their origin in
any study of the rights of man, or of the theories
of free government. They were spontaneous; they
grew out of the situation as naturally as plough
ing and seeding. What more natural than that
these infant communities, finding themselves with
out recourse to the old sources of civil authority
1 8 VIEWS OF AN EX-PRESIDENT,
and direction, and feeling the necessity of concur
rence in and submission to some rules of order
and living, should assemble the whole body of the
people for deliberation, and give the sanction of
the free concurrence of all, or the controlling
weight of a majority, to rules that were to be
binding upon all. Especially was this natural to
Englishmen. Guizot says: "When there scarcely
remained traces of popular assemblages, the re
membrance of them, of the right of free men to
deliberate and transact their business together, re
sided in the minds of men as a primitive tradition
and a thing which might come about again." The
town meeting was adequate when the subjects to
be dealt with were of a municipal character. But,
as settlements were multiplied and common inter
ests were developed, representative assemblies, com
posed of chosen delegates from the towns, were
needed, and the need produced them. Professor
Seeley says the colonial assemblies "were not for
mally instituted, but grew up by themselves, be
cause it was in the nature of Englishmen to as
semble."
The threat of tribal attacks drew towns and even
colonies into consultation and co-operation. The
first union among the New England colonies, made
in 1643, recited that "Whereas we live encom
passed with people of several nations and strange
languages which hereafter may prove injurious to
THE NATIONAL CONSTITUTION IQ
us or our posterity. And forasmuch as the na
tives have formerly committed sundry insolences
and outrages upon several plantations of the En
glish and have of late combined themselves against
us * * * We, therefore, do conceive it our
bounden duty without delay to enter into a present
consociation amongst ourselves for mutual help
and strength in all our future concernments." They
did not await the approval of the crown. Edward
Winslow well said : "If we in America should
forbear to unite for defense against a common ene
my till we have leave from England, our throats
might be all cut before the messenger would be
half seas over."
Nearness to the savage and remoteness from
England were both favoring conditions in the de
velopment of a hardy citizenship and of the great
republic. If our ancestors had found this conti
nent unpeopled and the ocean passage had been
what it is to-day, how different the story would
have been. Necessity, rather than philosophy, was
their instructor in civics. The colonists could not
know in time the pleasure of the crown, and so
they pleased themselves, and the habit grew. In
the absence of the anointed ruler, a count of hands
was a natural suggestion.
Our ancestors in older England had possessed,
in the hundreds, shires and counties, some powers
of local government. These had largely been as-
2O VIEWS OF AN EX-PRESIDENT
sumed by the crown, but the tradition of them and
the inherited adaptation to their use were in the
minds and blood of their descendants. The com
pact of government made on the Mayflower is said
to have grown out of the mutinous disposition of
a few persons, not of the Leyden church, and prob
ably servants. The Pilgrims had embarked under
a patent from the Virginia Company, and these ill-
disposed persons insisted that if the proposed land
ing, outside of the limits of that company, was
made, they would be under no legal restraint. The
emergency was met by the "solemn covenant"
whereby they combined "into a civil body politic
for our (their) better ordering and preservation."
"And by virtue hereof," they said, (we) "do en
act, constitute and frame such just and equal laws,
ordinances, acts, constitutions, and officers, from
time to time, as shall be thought most meet and
convenient for the general good of the colony; unto
which we promise all due submission and obe
dience."
Here was an exigency. If the colonists had
been of Spain it would possibly have been re
solved by the choice of a captain, with arbitrary
powers or by some bold spirit seizing the leader
ship; but they were Englishmen and protestant
Christians, and so the compact of government was
democratic. Of the Mayflower compact Judge
Story says, it was, "if not the first, at least the best
THE NATIONAL CONSTITUTION 21
authenticated case of an original social compact
for the establishment of a nation which is to be
found in the annals of the world." They did not
announce any political maxims, as that civil gov
ernment derives its "just powers from the consent
of the governed," or that "all men are created
equal"; but they applied them. The compact was
introduced by the declaration that they were "loyal
subjects of our dread sovereign Lord King James,"
and they at once applied for a charter from the
crown. So far as they assumed general govern
mental powers, it was ad interim until the crown
should act. But as to local goyernment the or
dering of things that required a particular knowl
edge of the needs and changing conditions of the
community the assumption was never intermit
ted, and local government was never wholly lost
in the colonies.
A government by the English crown and parlia
ment was, as to local and municipal affairs, not
only incongruous but impossible. Things affecting
the personal security, health and comfort of the
people, must be committed in a large measure to
local control. Local needs and conditions are so
various that we have found it impossible for the
government at Washington to legislate for the terri
tories. Some general limitations, some provisions
in the nature of fundamental law, have been made;
but, subject to these and to the power of congress
22 VIEWS OF AN EX-PRESIDENT
to annul any territorial law a power seldom exer
cised it has been found necessary to give general
legislative powers to legislatures chosen by the peo
ple in each territory. When a civil government
was given to Alaska, the best congress could do
in the absence of a sufficient population to organ
ize a local legislature was to declare that the laws
of the state of Oregon should be the laws of Alaska.
This system of local control we have also perpet
uated in the states. Cities, towns, counties, town
ships, school, and road districts, have many impor
tant powers given to them some of them of a
legislative character. No state legislature could
satisfactorily determine all these matters though
each locality had its representative in the body,
and its sittings were within a half day's travel of
the people to be affected.
These adjustments and subdivisions of the pow
ers of government are not so much of conven
ience of philosophy as of necessity. Consider then
how impossible it was that the king and parlia
ment could satisfactorily direct the local affairs of
the colonies three thousand miles, a six weeks'
journey, full of discomfort and peril no represen
tation in the parliament conditions that had
scarce a resemblance to English life needs born
in .a night and exigent as a savage war-cry a
king and parliament absorbed by European inter
ests and intrigues, ignorant of American affairs,
THE NATIONAL CONSTITUTION 23
and so selfish as to be unteachable and wholly
unsympathetic these were the conditions that,
from the landing of the first colonists, were slow
ly, unconsciously, but inevitably, bringing to birth
the Great Republic. As well might Gloucester
fishermen attempt to make laws for a Sierra min
ing camp as the English parliament for an Ameri
can colony.
A local control of local affairs is primitive and
natural. Government was begun on that basis.
The family, the original unit of human associa
tion, made its own rules of living; so the pro
gressive forms of association the tribe, the vil
lage, the city, the state, the federation were
evolved from dangers, ambitions, or needs, com
mon to several families, tribes, villages, cities or
states. The function of the state, whether single
or federal, had to do with things of a general na
ture, of common concern to the families, or tribes,
or states, composing it such as war, peace, diplo
macy. The English habit of local government was
derived from the Teutonic invaders and conquer
ors. In Germany the community organization was
called the "mark," and the town meeting, where
the affairs of the "mark" were discussed and de
cided, was the "mark-moot." The conquest was so
thorough that scarcely a trace of the Celtic inhab
itants was left. The ground was made fallow for
the unmixed planting of the civil system of the
24 VIEWS OF AN EX-PRESIDENT
German conquerors. Names were changed, but not
the substance. The "mark" became the "tun" or
"township", and the local assembly the "tun-moot".
These free and full assemblages of citizens chose
the local officers and selected and sent four repre
sentatives to the courts of the hundred and the
shire. This old English term, the "hundred," be
came familiar to all of us though, perhaps, not
understood by all when, during the civil war, we
heard so often from General Grant on the James
river, and the dispatches were dated "Bermuda
Hundred." Mr. Fiske says: "In these four dis
creet men sent to speak for their township in the
old country assembly we have the germ of insti
tutions that have ripened into the house of commons
and into the legislatures of modern kingdoms and
republics. In the system of representation thus in
augurated lay the future possibility of such gigan
tic political aggregations as the United States of
America."
The organization of our national government
was possible only upon the basis of a reserved lo
cal control of local affairs; and the preservation
of that system is essential to that popular con
tent which is the only security for the preserva
tion of the union. California and Maine could
not be united under a government modeled on any
other system. At the basis of this system is the
palpable incongruity of including in the govern-
THE NATIONAL CONSTITUTION 2$
ing body those who have neither knowledge of
nor direct interest in the matters to be determined.
At another time I will speak of the complement
of this truth the exclusive control and direction
of all general concerns by the national govern
ment. The one is as essential as the other. It is
quite as, rather more, incongruous and intolerable
that general concerns affecting the whole body of
the republic should be controlled or unduly influ
enced by states or localities. If only such as are
directly affected by the conclusions reached are to
be admitted to the ballot and the conference, then
all such must be admitted to a free and equal
participation.
The colonists brought with them, not only their
English traditions and instincts, but they stoutly
claimed their English citizenship, and the liberties
and personal rights that they would have possessed
if they had remained in the old home. Many of
the charters expressly preserved these rights.- The
first charter of Virginia, granted by King James,
in 1606, declared that all British subjects and
their children should "have and enjoy all liber
ties, franchises and immunities, within any of our
other dominions, to all intents and purposes, as if
they had been abiding and born within this our
realm of England, or any other of our said domin
ions." The charters of Connecticut, Georgia, Mas-
26 VIEWS OF AN EX-PRESIDENT
sachusetts, North and South Carolina, and Rhode
Island contained similar provisions.
But these rights were not well defined at home.
Some of the liberties that had been wrested from
the crown had been resumed. The English consti
tution, during the colonial period, was not only un
written, but undeveloped. The contest in the col
onies was partly concurrent and on similar lines
with the struggle of the English people against
kings who sought to attain absolute power. The
rights of Englishmen, the powers of parliament,
the limitations of the king's prerogative, were yet
to be defined and adjusted. The present magnifi
cent English constitutional government was in
growth; but it had not yet attained form and
strength in its native soil, and was not ready for
transplanting. And, besides all this, the widely dif
ferent conditions prevailing in the colonies, as we
have seen, required modification and adaptation at
the least. Self-governing, prosperous, loyal English
colonies now exist the fruit of a defined and liberal
home constitution, and of the disastrous failure of
the attempt to enslave her greater colonies but
they were impossible to that generation.
One most important principle had, after centu
ries of struggle, been established and set in the
English constitution, namely, that revenues were
not to be levied at the king's pleasure, but granted
by a body more or less representative of the peo-
THE NATIONAL CONSTITUTION 2.J
pie. The representation was sometimes, as to many,
theoretical rather than actual of classes rather
than of the body of the people; but the principle
that individual property could not be taken for the
public use, except by the vote of a body more or
less fully representative of the tax-payer, had tri
umphed and the invasions of it by the king were
becoming less frequent and more perilous.
There was a long period of English history that
was characterized by successful aggressions on the
part of the crown upon the rights of the people
and the powers of the courts and of parliament.
Hume, speaking of the reign of James I (1603-16),
says:
"The great, complaisance, too, of parliaments, dur
ing so long a period, had extremely degraded and
obscured those assemblies; and as all instances of
opposition to prerogative must have been drawn
from a remote age, they were unknown to a great
many, and had the less authority even with those
who were acquainted with them. These examples,
besides, of liberty had commonly, in ancient times,
been accompanied with such circumstances of vio
lence, convulsion, civil war and disorder that they
presented but a disagreeable idea to the inquisitive
part of the people, and afforded small inducement
to renew such dismal scenes. By a great many,
therefore, monarchy, simple and unmixed, was con
ceived to be the government of England; and those
28 VIEWS OF AN EX-PRESIDENT
popular assemblies were supposed to form only the
ornament of the fabric, without being in any de
gree essential to its being and existence."
And, in a note it is said : "I have not met with any
English writer in that age who speaks of England
as a limited monarchy, but as an absolute one,
where the people have many privileges."
This may be accepted as the view of the king
and as an approximately true description of things
,as they were; but the great charters never ceased
to be a part of the English constitution they were
dormant, but unrevoked. Kings had trampled them
under foot; but in so doing had only bedded the
seeds of liberty in a prepared soil.
The revolution of 1640, resulting in the execu
tion of Charles I, and in the establishment of the
commonwealth under Cromwell, the restoration,
the renewal of the struggle under Charles II, and
James II the deposition of the latter by a parlia
ment assembled without the king's writ, the choice
by the same parliament of William and Mary,
their settlement upon the throne under a compact
in the nature of a bill of rights, the increasing
power of the house of commons, the substitution
of annual, for life grants of revenue to the crown,
making an annual parliament necessary all these
great episodes in English history and in human
progress were enacted before the interested vision
of the English colonists in America, and were
THE NATIONAL CONSTITUTION 29
highly instructive and suggestive. Out of these
struggles, and out of the reformation, had come a
literature of liberty. The dignity and the equality
of men the state for man, and not man for the
state the universal fatherhood of God; and its
corollary, the universal brotherhood of man, liberty
of conscience and of speech all these great themes
had found impassioned expression. What wonder
that the colonists began very early to ask if the
king may not lay a charge upon Englishmen at
home by an order in council, but only by the free
votes of a representative assembly, why should he
do so upon Englishmen who have, for the glory
of God and of England, braved the perils of the
sea and of the savage? and that further and more
searching question, by what right does a parlia
ment in which we have no representation assume
sovereign legislative power over us?
The earlier charters appear to have been framed
without any adequate conception of the commer
cial and political importance which the colonies
were to attain; and for a time the king was lax
in his supervision, and not careful to maintain pre
rogatives that seemed to involve burdens rather
than benefits to the crown treasury.
In my next lecture I will ask your attention to
some of these earliest American constitutions.
THE COLONIAL CHARTERS
SECOND LECTURE
Delivered at Stanford University, March 12, 1804
It is my purpose to-day to notice some general
aspects of the charters under which the American
settlements were made, and to outline the develop
ment in the colonies of those unwritten constitu
tions which came by use to be treated though not
so accepted by the English crown as expressing
the fundamental civil rights of the inhabitants.
The colonists, in their contentions with the crown,
demanded all the rights given by their charters,
but they never accepted the charters as containing
full bills of rights. If a specification could not be
found in the charter of the colony it was sought
in the Magna Charta; and, if not found there, in
later English precedents; and, when all these gave
out, in God's great charter of original and inalien
able rights.
The earlier charters were chiefly land grants
rather conveyances than civil constitutions. The
30
THE COLONIAL CHARTERS 3!
theory of the English law upon which they pro
ceeded was that all newly-discovered lands were the
property of the king and might be granted by him
to corporations or individuals upon agreed terms
and charges. Some of these American grants were
to companies or corporations, upon which succession
and certain governing powers of a corporate nature
were conferred. The corporations were subject to
what was known as the visitorial power of the
king, and the grants or charters to forfeiture by ju
dicial decree, for cause.
The English parliament, at the beginning, had
no participation in these matters. The charters
were not submitted to it for its approval; and the
only relation between the colonists and the kingdom
was through the king. This fact should be kept
in mind; for it will appear that when, at a later
period, the English parliament asserted a sovereign
legislative supremacy over the colonies the claim
was denied, and the denial was grounded by some
upon the theory that the colonies were royal pos
sessions having the same king with the English
but not a part of the realm of England.
The introductory words of the Massachusetts
charter, of 1620, were: "J ames > by the Grace of
God, King of England, Scotland, France and Ire
land, Defender of the Faith &c. * * * of our
especiall Grace, mere motion, and certain knowledge,
by the advice of the Lords and others of our Privy
32 VIEWS OF AN EX-PRESIDENT
Council have for us, our heirs and successors,
granted, ordained and established," etc. The conclu
sion reads : "Witness our selfe at Westminster/' etc.
Franklin, writing in 1774, said:
"From a thorough inquiry (on occasion of
the stamp act) into the nature of the connec
tion between Britain and the colonies, I am
convinced that the bond of their union is not the
parliament, but the king. That, in removing to
America, a country out of the realm, they did not
carry with them the statutes then existing; for, if
they did, the Puritans must have been subject there
to the same grievous act of conformity, tithes,
spiritual courts, etc., which they meant to be free
from by going thither; and in vain would they
have left their native country, and all the con
veniences and comforts of its improved state, to
combat the hardships of a new settlement in a dis
tant wilderness, if they had taken with them what
they meant to fly from, or if they had left a power
behind them capable of sending the same chains
after them, to bind them in America. They took
with them, however, by compact, their allegiance to
the king, and a legislative power for the making
a new body of laws with his assent, by which they
were to be governed. Hence they became distinct
states, under the same prince, united as Ireland is
to the crown, but not to the realm, of England, and
governed each by its own laws, though with the
THE COLONIAL CHARTERS 33
same sovereign, and having each the right of
granting its own money to that sovereign."
This reasoning was not adopted by all of those
who denied the supremacy of the English parlia
ment. For the most part, as we shall see, they did
not refine very much, but were satisfied to rest
their opposition upon the principle that taxation
without representation was in violation of their
rights as Englishmen.
The early grants or charters treated the settle
ments as commercial adventures, and took little ac
count of matters of civil government. In most
cases the patentees were men who did not contem
plate an American residence. They adventured
their money, but not their persons; they sought pe
cuniary, rather than political advantages; govern
ment was an incident. The governing body of the
corporation its board of directors, as we should
say selected the resident governor and other officers
and made laws and regulations, much as a railroad
corporation does with us. But, as the visions of
sudden wealth were dissipated from the minds of
the patentees, and the colonists became more numer
ous, political interests and considerations came to
have a fuller recognition, and before long to be of
the first importance. And so the later charters
came more to resemble civil constitutions laws to
have more consideration than lands, and the settlers
more than the home adventurers.
34 VIEWS OF AN EX-PRESIDENT
The American colonies have been assigned to
three general classes, though several of them passed
from one class to the other before the revolution.
These classes were, first, the charter colonies. Of
these, Massachusetts, Connecticut and Rhode Island