of the same system. The chief reform was the attempt to eliminate the legislature from its colonial place as a court of appeals. The number of writs possible in colonial times was practically unknown, for a case might go "from a justice of the peace to the general session; thence to the common pleas; thence to the superior court, and thence to the legislature; to be by that body sent back to the superior court for final decision with the further chance of a new trial on a writ of review." Protracted and therefore costly litigation had long been a serious evil, and the separation of legislative and judicial functions became one of the great reforms of the times. Another was the creation of distinct courts with specified jurisdictions, and a third was the gradual development of a system of appellate courts, by which litigation should be brought to as speedy a termination as possible.

The common law, with its elaborate and highly technical forms, made legal practice a mystery. It was a step toward simplicity to arrange a system of inferior and superior State courts; to prepare the way for the gradual abolishment of the nisi prius system; to define, at least in an elementary fashion, the civil and criminal jurisdiction of the courts, and to make their law and equity powers clearer. The elaborate article on the judiciary in the first constitution of Maryland2 describes with tolerable completeness the practice of law; as well as the judicial system of an American commonwealth at this

1 "The Development of the Courts of New Hampshire from the Termination of the Province Government in 1775," by Albert Stillman Batchellor, in New Hampshire State Papers; in the New England States, their Constitutional, Judicial, Educational, Commercial, Professional and Industrial History. William T. Davis, Editor Vol. IV, pp. 2295-2315. D. H. Hurd & Co., Boston, 1898.

21776.

LOCAL GOVERNMENT.

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time. The complexity of the judicial system and its bewildering variations undoubtedly explain why the Federal Convention vested the judicial power of the United States in general terms and left details to be worked out by Congress, but the Convention followed State precedents in adopting the appointive system, and the tenure of office for good behavior.1

The Revolution did not change the system of local government. The chief local officer in colonial times was the sheriff, and his importance continued undiminished under the constitutions. In most States he was an elective officer. Respecting other local officers, save coroners and justices of the peace, the constitutions were mostly silent, but the legislatures soon provided for assessors, collectors, treasurers, land officers, selectmen, aldermen, mayors and councilmen. The sparsity of population and the absence of large towns eliminated the problem of city government. When we consider that not until 1850, when Michigan introduced an article of local government in its constitution, was the subject hinted at in the organic law of a State, it is easier to understand the silence of the eighteenth century constitutions on a subject now considered of first importance.2 The American people were agricultural at this time; their life was simple and filled with labor, and the social efficiency at which they aimed, in these constitutions, was not sought through elaborate provisions regulating local government or limiting the power of legislatures. These instruments were considered at the time as the work of a new and liberal age. They were made by some of our foremost statesmen, and necessarily became authoritative precedents for many of the provisions in our

1 Constitution of the United States, Article III, Section 1. 2 See my Constitutional History of the American People, 17761850, Vol. II, 255-256, 278 (Michigan); 451-457, 471-473.

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ANTIQUITY OF THE ISSUE.

national Constitution. They were clearly the precedent for its provisions on the power of each House to judge of the election, returns and qualifications of its members; on the rules of proceedings; on the expulsion of members, and the keeping of a journal; and perhaps for minor matters, though provisions in a national Constitution would be, of necessity, the result of centuries of parliamentary government.1

The committee appointed by Congress, in 1776, to prepare Articles of Confederation was familiar with these constitutions, which, it may be said, clearly pointed the way toward a Constitution of government for the Union. Some members of the committee had participated in the work of the conventions that had framed State constitutions, but the formation of Articles of Confederation involved many questions which could not have arisen in these conventions.

First of all there was, as yet, no well accepted notion of what the Union should be, though the subject was not a new one. In a simpler form, the question had come up nearly a century and a half before,3 when the necessity of self-protection led the people of Massachusetts, Plymouth, Connecticut and New Haven to federate. This

1 United States Constitution, Article I, Section 5.

2 It consisted of Bartlett of New Hampshire, Samuel Adams of Massachusetts, Hopkins of Rhode Island, Sherman of Connecticut, R. R. Livingston of New York, Dickinson of Pennsylvania, McKean of Delaware, Stone of Maryland, Nelson of Virginia, Hewes of North Carolina, Edward Rutledge of South Carolina, Gwinnett of Georgia. Of these Bartlett, Adams, Sherman, McKean and Dickinson signed the Articles that finally passed Congress. McKean, Stone, Nelson and Hewes were prominent in the constitutional conventions of more than one State. The first State constitutions were printed and circulated in pamphlet form, and the number of copies now in existence causes us to believe that the originals were well known to the public men of the day. 3 1643.

was the first of several plans for colonial union,-most of them belonging to the eighteenth century,-which preceded the Articles. Though none of these plans, except the first and the last, were tried, all were known to the statesmen of the Revolution, and taken together they constituted the only precedents for union directly applicable to America in 1776. Though hardly more than abstract propositions, yet, because of their appearance from time to time during the colonial period, they formulated the ideas of union then entertained, and, therefore, are an unconscious record of the evolution of the federal idea in America.1

The Union of the four New England colonies, in 1643, excluded the people of Rhode Island and Providence, because they were not "of the same church fellowship." Any political union in the seventeenth century was likely to be based upon ecclesiastical notions, but to attempt to form a federation out of communities holding different religious ideas was to admit elements of discord. In the New England Union, the town was the unit of measure, had well defined interests, and was soon recognized in law as a quasi-corporation.2 In order to effect a federation, three elements in the political affairs of the con

1 These plans were first collated by Doctor Frederick D. Stone, Librarian of the Historical Society of Pennsylvania, under the title, "Plans for the Union of the British Colonies of North America, 1643-1776," and were published as the Appendix to Vol. II of Hampton L. Carson's History of the Celebration of the Hundredth Anniversary of the Promulgation of the Constitution of the United States; J. B. Lippincott Company, Philadelphia, 1889. The first plan in this connection is that of the New England Confederation of 1643. Its Articles are also given in Preston's Documents, pp. 85-95.

2 This historical point was discussed at great length by Levi Lincoln, Daniel Webster and others in the Massachusetts Convention of 1820; see its Debates (Edition, 1821) Index, Senate.

federating colonies were recognized; the individual, the township or town, and the colony. The Union, therefore, was an association, or league, between which and the individual there was the common agent, the colony, called at this time the province, or plantation. But the four constituents of the league were not equal in power and resources. The expenses of war were charged in an equitable manner according to the service which the league contributed to its members; the heavier burden, therefore, fell on the most populous provinces:-the earliest instance in our history of a federal attempt to adjust and apportion public expenses.

As the four provinces were practically independent of each other, slight provision was made for the federal administration of government. Each plantation had a voice in the league and public safety pointed out that each should have at least two representatives; the precedent for the basis of representation in the Senate of the United States. The charges of war, the division of spoils "and whatsoever is gotten by conquest" were apportioned among the four confederates. They were empowered to admit. new members, but only of the same church fellowship, for a religious qualification was held at this time, as it was a century and a half later, to be the best test of trustworthiness in public and private life. For two hundred years this test was to be exacted, though with decreasing rigor. The eight representatives from the plantations settled minor matters that came before the league, by a majority vote. Important questions were settled by a three-fourths vote, or, if this could not be had, were referred to the four legislatures, and their agreement determined the public policy.

1 Constitution, Article I, Section 3, Clause 1.