FRENCH AND AMERICAN THOUGHT

19

been made by the friends of the English system of checks and balances only a few days before the adjournment of the body. The motion to amend the frame in this respect, and to establish two houses instead of one, was offered by Mr. Ross, the Vice-President of the Convention, on September 16, and it was seconded by Mr. Clymer of Philadelphia, two of the leading minds in the Convention.35 It was decided, though the Minutes are silent as to the vote on this subject, that further debate upon this point should be precluded, since it had been fully discussed before. There was to be but a single house; conviction seemed to prevail among the members in respect of this feature of the government. The "supreme legislative power", as the Constitution describes it, was to repose in a "house of representatives of the freemen of the Commonwealth or State of Pennsylvania ",36 whose members were to be chosen annually in the counties, each county at first returning an equal number, though the basis of representation was soon to be changed to the more equitable one of taxable inhabitants.

Upon this single assembly was conferred almost absolute power. As every suggestion regarding a Senate, appeared in the eyes of the Pennsylvania democrats to be a movement to establish an odious House of Lords, an "upper" house, whose very name was inconsistent with the principles of equality, so the term Governor smacked too, of royalty, the royal and proprietary colonies in America all having had Governors. They would therefore have no officer known by this name, and none, indeed, of any kind who should stand as an obstacle between the people and the State. For the people were the State, and the State was the people. Like Paine, who said in his Common Sense, that he took his rule from a "principle in nature which no art can overturn, viz: that the more simple a thing is, the less liable it is to be disordered, and the easier repaired when disordered ",37 the framers of the Constitution of Pennsylvania would put no

Cf. Minutes of the Convention, p. 51.
Constitution, sec. 2.

37 Common Sense, p. 8.

38

clog upon the wheels of government. Therefore there should be no Governor, and no one exercising the powers of a Governor. There should be a plural executive, to be called the Supreme Executive Council, in which was vested the "supreme executive power ", and this body was to have a President, who was to be called the President of the State of Pennsylvania, in true republican form. The councilors were to exert no legislative power whatsoever and they did not constitute a second house. They, with their President, had no negative upon the legislature, and were not even authorized to offer their advice concerning the passage of any law, except in so far as this may have been contemplated when it was provided that the Council should prepare business to be laid before the Assembly.39 Each county was to elect one councilor to serve for a term of three years. As there were then twelve counties, it was at first a body therefore of twelve members. One third of the Council was renewed annually, four seats being vacated each year. In the Constitution of our very squeamish democrats, as if an apology were needed, the following explanation of this system is found: "By this mode of election and continual rotation, more men will be trained to public business, there will in every subsequent year be found in the Council a number of persons acquainted with the proceedings of the foregoing years, whereby the business will be more consistently conducted, and moreover, the danger of establishing an inconvenient aristocracy will be effectually prevented." 40

By the original draft of the Constitution, which was printed in Philadelphia in September, the Assembly in addition to its other extensive powers, was to elect nine men from outside its own membership to compose the Council." By this deviation from the original plan, which resulted in the Council being made elective by the people, the Assembly was

39 Sec. 20.

40 Sec. 19.

39 Constitution, sec. 3. "Pennsylvania Gazette, Sept. 18, 1776.-" The proposed plan or frame of government for the Commonwealth or State of Pennsylvania", sec. 18.

deprived of a very considerable part of its authority over the executive department of the government, though it was still charged with the task of meeting annually with the members of the Council, and of electing by joint ballot from the latter body, the presiding executive officers of the State, a President and a Vice-President.42 The State treasurer was to be appointed by the Assembly, and the delegates to the general American Congress were similarly chosen, which was the prevailing method in other States at that time. It could elect, removable at its own pleasure, a register of wills and recorder of deeds, in the city, and in each county, 43 and impeach "every officer of state, whether judicial or executive", the proceedings to be heard before the President and VicePresident, and a quorum of the Council." The judges of the supreme court who were to be appointed by the Council, could be removed at any time by the Assembly for "misbehavior".45 Justices of the peace who were elected by the people in the city and counties, could in the same way be displaced by the Assembly for "misconduct "40

Here, in respect of the judiciary the principle of the separation of powers, which Mr. Adams contended for was grossly violated. That the judges should be removable by the legislature for "misbehavior" was a rule calculated to bring about a subserviency in the courts which was gravely contemplated by conservative men. That the Assembly should be unchecked by a second house, a governor or any authority equal in power and dignity in the legislative department of the government, was occasion for real alarm, but that the courts of justice, too, were to be subordinate to this supreme single chamber, was a remarkable circumstance. It is true, there was a fanciful plan by which the work of the Assembly could be reviewed at periods of seven years. Then the people of each county and the city were to elect a body to be called a Council of Censors. This Council was to

2 Sec. 19.

43 Sec. 34.

44 Sec. 22.

47

45 Sec. 23.

Sec. 30. "Cf. Rousseau, Contrat Social. Rousseau's chapter on Censors must

meet and discuss the question whether during the septennial period which had just been passed through, the Constitution had been "preserved inviolate in every part, and whether the legislative and executive branches of the government have performed their duty as guardians of the people, or assumed to themselves or exercised other or greater powers than they are entitled to by the Constitution ". They were to examine into the collection and expenditure accounts of the government, to call for papers and records, pass “public censures ordet impeachments and "recommend" the Assembly to repeal such laws" as appear to them to have been enacted contrary to the principles of the Constitution ".

48

The Assembly was, indeed, restricted in one important respect. It was specifically denied the power " to add to, alter, abolish or infringe any part of this Constitution ",49 although the tendency in the United States in a few years, was to set in strongly in the direction of giving the State legislatures this right, usually, it is true, only after the assent of the people has been expressed in a plebiscite, yet solely upon the initiation of the legislature. In Pennsylvania, the Council of Censors was the only body which could start the machinery for a change in the Constitution, be it ever so small. By a two-thirds vote the censors could summon a convention, and this body might then amend the fundamental law of the State, in the same manner in which it had been originally established.

In order that there might be no suspicion of an hereditary system in office-holding, there was to be frequent rotation in the civil service. Thus any person who had served as a councilor for three successive years, that is for one term, was not to be capable of holding this office again for four years afterwards.50 Representatives in the Assembly were not to continue in their offices more than four years in any

have suggested this very odd device to the Pennsylvanians when they were seeking for a government which would make them wholly free of English constitutional usage.

48 Sec. 47.

49 Sec. 9.

seven,1 and the terms of certain other officers were also limited by the Constitution.52

It has always been a matter of interest among those who have written of the early political history of Pennsylvania— few, unfortunately, in number-to inquire what precisely were the influences which led the Convention to adopt such a system of government, when none of the other colonies. turned away so lightly from custom, tradition and the advice. of good authorities on constitutional subjects. It is true that Georgia and Vermont in the next year, 1777, adopted constitutions which in respect of the single house of legislature, at least, followed the Pennsylvania plan.53 But an examination of these instruments will show that they differ in some rather important respects from the first Constitution of Pennsylvania. Vermont, on account of a territorial question, was not one of the original States, being admitted to the Union. only in 1791, after the adoption of the Federal Constitution, when the confederation had made way for the federation, the Staatenbund for the Bundesstaat. Vermont had its Governor and Lieutenant-Governor, instead of a President and Vice-President. There was a Council in lieu of a second house, which was without the power of vetoing legislation, however, quite as in Pennsylvania. Nevertheless, it was provided in Vermont, and this was a difference of some importance, that "to the end that laws before they are enacted may be more maturely considered, and the inconveniency of hasty determination as much as possible prevented, all bills of public nature shall be first laid before the Governor or Council, for their perusal and proposals of amendment ".5* In Pennsylvania, the only suggestion that delay might be expedient, was contained in a provision which placed the responsibility with the people, rather than with the councilors.

1 Sec. 8.

8 Cf. Adams' Works, Vol. II, p. 508,

For instance, sheriffs and coroners in counties, sec. 31. Matlack, Cannon, Young and Paine had influence enough to get their plan adopted in Georgia and Vermont, as well as Pennsylvania ".

"Con. of Vermont, 1777, sec. xiv.