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while providing that the original assembly should consist of two representatives from each town or place, at the same time authorized the assembly to alter this number at will; and, although the modern democratic principle of equal election districts was not recognized, an attempt was made to give special weight to larger numbers. In the middle colonies, the county was the unit of representation, and, according to ancient English precedent, each county elected its representatives under the supervision of the sheriff as returning officer. In South Carolina representatives were apportioned among parishes, but they varied so greatly in population that the representation was unequal. In general, it may be said, therefore, that the principle of equal representation was not accepted, but that practical considerations led to a very rough attempt to give special recognition to the more populous areas.

The colonial assemblies constantly maintained that they possessed entire and exclusive authority to regulate their domestic concerns.1 Especially in the matter of taxation did they stoutly assert their exclusive rights not only in formal declarations but also in actual resistance to the royal and proprietary governors. No attempts, however, were made to define and lay down colonial legislative powers in any complete written instruments. Such a procedure was almost unknown to the political practice of England; and no concrete need for it had arisen in the colonies. In the charters, the legislative power conferred was general, not specific. For example, the Massachusetts charter of 1691 provided that the assembly should have "full power and authority from time to time to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions, and instructions either with penalties or without (so that the same be not repugnant or contrary to the laws of this our realm of England) as they shall judge to be for the good and welfare of our said province or territory." In addition to this general legislative power, the assemblies usually enjoyed a large control over the executive

1

1 Story, Commentaries on the Constitution (5th ed.), Vol. II, p. 119. 2 Some of the legislatures, however, prepared statements of their "rights." New York, for example, did this before the close of the seventeenth century.

department through their power to withhold the salaries of the officials.

Notwithstanding the large legislative power asserted and enjoyed by the colonial assemblies, there were certain legal limitations on their authority. In the provincial and proprietary colonies, the governor exercised the right to veto laws,1 and in all colonies except Maryland, Rhode Island, and Connecticut laws had to be sent to England for royal approval. Furthermore a special act of Parliament provided that all laws, by-laws, usages, and customs in the colonies repugnant to laws made in England relative to colonial affairs should be null and void. Later, Parliament distinctly asserted that the colonies and plantations in America were subordinate to and dependent on the crown and Parliament of Great Britain, which enjoyed the power and authority to make laws binding the colonies and people of America in all cases whatsoever. A South Carolina court once went so far as to declare an act of the colonial legislature of 1712, taking away the freehold of one man and vesting it in another, null and void on the ground that it was against common right and Magna Charta.2 At all events the colonists had long been acquainted with both theoretical and practical limitations on their assemblies, so that, after gaining independence, they acquiesced, though not without contest, in the courts' assumption of power to declare laws null and void on constitutional grounds.

The Colonial Judiciary

The lowest colonial courts were those held by the justices of the peace, who were generally appointed by the governor, although in some instances they were elected by local freeholders. In civil matters, these justices had jurisdiction over cases involving small amounts, under five pounds in New York and under forty shillings in Massachusetts. In criminal matters they were competent to try only the pettiest offences against the law. Though they bore the name of ancient local magistrates of England, they enjoyed by no means the same powers, especially in

In Connecticut and Rhode Island the governor did not enjoy the veto power.

2 Thayer, Cases on Constitutional Law, Vol. I, p. 53.

the matters of administration and local government. In Massachusetts, and some other colonies, however, the old English practice of uniting all the justices of the county in a general court of quarter sessions was followed; and this court, in addition to exercising criminal jurisdiction, supervised roads, bridges, inns, and other county affairs which are now usually placed under the direction of county commissioners.1

Above the justices of the peace there were usually regular county courts, the judges of which were appointed by the governor, except in New Jersey, where they were elected. Generally speaking, the county court had criminal jurisdiction over all except capital cases, although in Massachusetts criminal matters were turned over to sessions of the justices of the peace. The county courts also had civil jurisdiction in cases involving certain

amounts.

Each colony had a high court which decided weighty matters and appeals from the lower courts. In the royal colonies the governor as chancellor and his council generally composed this high tribunal; but in Massachusetts it consisted of a chief justice and four associates appointed by the governor and council. In Pennsylvania the supreme court was composed of a chief justice and three associates, chosen by the governor.

Beyond the highest court of the colony, there lay appeals to the king in council in England, and this power was frequently exercised on the eve of the Revolution. Far from being regarded as an infringement on the rights of colonists, it was esteemed a privilege to be able to lay cases before the members of this tribunal, who were so far removed from local jealousies. It was of course an expensive process, and only cases involving certain amounts could be appealed. In Pennsylvania the amount had to exceed fifty pounds, and in Georgia five hundred pounds, before the case could be carried to the king and his council.

While there were great divergences among the colonies in the organization of the courts and the apportionment of business among them, they thus had certain features in common. The idea of an elective judiciary, unknown to English practice, was not accepted save in some minor instances. The system of

1 Readings, p. 13, on the powers of magistrates in Virginia.

2 Story, Commentaries (5th ed.), Vol. I, p. 127.

appeals to the highest colonial court was universally recognized, and the practice of carrying important cases to a tribunal above all colonial courts was steadily maintained. Consequently, when the colonists were later called upon to organize their own judicial system, they had to make but slight changes in the existing arrangements.

Municipal and Local Institutions1

Although there were in the colonies no cities of importance, measured by modern standards, the foundations of American municipal government must be sought in colonial times. It appears that there were about twenty municipal corporations during that period, each of which received its charter from the colonial governor - New York and Albany in 1686, Philadelphia in 1691, and Trenton, New Jersey, the last, in 1746. The form of organization in general followed old English examples; the governing body was a common council composed of the mayor, recorder, aldermen, and councillors. In most of the cities the councilmen and aldermen were "elected by popular vote under a franchise which everywhere included all of the well-to-do classes and generally a large proportion of the residents, though in no case was manhood suffrage established." In Philadelphia, Annapolis, and Norfolk the common council was a closed corporation; that is, the aldermen and councillors enjoyed life terms and the power of filling vacancies as they occurred. In accordance with English precedent, the mayor was not elected by popular vote. In a few instances he was selected by the common council, but in the majority of cities, including New York and Albany, he was appointed by the provincial governor. Somewhat restricted powers were at first conferred upon the municipality by its charter, and in the later period, before the Revolution, it was a common practice to secure from the colonial assemblies special acts granting additional powers. The striking feature of the colonial municipal system was the fusion of executive, legislative, and judicial functions in the hands of the same body; and it is interesting to note that the commission form of municipal government now being widely adopted throughout the United States is the return to the original principle in so

Reference: Fairlie, Municipal Administration, pp. 72 ff.

far as it vests administrative and legislative powers in one authority.1

2

In the sphere of rural local government we have departed even less from colonial models than in other branches of administration. The Revolution did not disturb, in any fundamental manner, the institutions of local government which had come down from early colonial times; for, as Professor Fairlie says, "the main features of the old systems continued in the different states. Towns in New England and the middle states and parishes in the southern states remained unaltered; and are in fact not mentioned in most of the constitutions of the revolutionary period." In New England the unit of local administration was the town, which was governed by a meeting of the electors, who chose the town officers, levied taxes, appropriated money, passed by-laws, and reviewed the activities of the various local officers." Counties existed, of course, in New England, but only in a rudimentary form, and principally for judicial purposes. In the middle colonies, notably New York and Pennsylvania, there was a combination of town and county local government. Town meetings were held in New York as in New England. As early as 1691, however, a county board of supervisors, representing the various towns, was created and began to absorb at once the most important local administrative functions. In Pennsylvania, strong county administrative organization overshadowed the town and furnished the model for local government in a large number of western states. In the South, the plantation system led to the formation of scattered settlements, so that local government had to be based upon the county rather than the parish. Thus, for example, in Virginia, "the county became the unit of representation in the colonial assembly and the unit of military, judicial, highway, and fiscal administration. The officers were the county lieutenant, the sheriff (who acted as collector and treasurer), justices of the peace, and coroners. All were appointed

1 Goodnow, Municipal Government, p. 176; Readings, p. 529. It should be noted that in New England the government of the urban centres was based upon the rural town-meeting system.

2 Local Government, p. 33.

For the minutes of a Boston town meeting in 1758, see Readings, p. 11, and compare with the documents on a modern New England town meeting, Readings, pp. 556 ff.

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