The sun. [volume] (New York [N.Y.]) 1833-1916, 1902-11-23

, customary technical training. made him
a jurist capable Of winning the adnira-
B ton OF Lord Mansfield, was too strongly
, developed Allied with his rigid Puritan
/ conscience. II outweighed other good quail
ties and warped his nature. He was en-
: veloped in crust of intense legalit through
which he could not break. II he had lived
a century later, he might have written
the memorable pamphlet in which another
great Massachusetts, jurist njamin Curtis
argued that President Lincoln had no Con-
stitutional authority for emancipating the
slaves" Mr.. Fiske adds that 1t is always
well that such strides in advance should
be made under careful protest for only
thus is society kept secure against crude
experiments But the men best fitted
TO utter the protest are not likely to be COM
potent leaders in revolutionary times.
when it becomes necessary 10 view many
facts in new light"
III.
One of the most valuable papers in these
volumes is the estimate of Connecticut
Influence on the Federal Constitution
Mr. Fiske finds the germ OF our Federal
organic law in the Constitution creating tn
J the commonwealth of Connecticut. which
that met at Hartford on Jan. IL 1899 This in
strument, named The Fundamental Orders
Of Connecticut differed materially from
the plan Of government then and for some
time afterward operative in Massachusetts,
Bay, for il placed no ecclesiastical restric-
tions upon the suffrage, hut gave II 10 all
admitted freemen who had taken the oath
of fidelity TO the Commonwealth. Lest
b fhpra shplIil ha doubt n a A who
to be regarded as admitted freemen. the
General Court Of Connecticut later declared
that the phrase meant all who had been adj
mitted by town. Thus it appears that in
! Connecticut the towns were the original
sources Of power. just as in our Federal
Republic the original sources Of power are
the States. !, was perfectly well under
stood that each town was absolutely self
governing in all that related TO its own
local affairs and that all powers not ex-
pressly conferred upon the General Court
by the Fundamental Orders remained with
the town. One express direction to the
towns foreshadowed the provision in our
Federal Constitution that 1t shall guarantee
to each State a republican form Of govern
ment II like manner the Fundamental
, Orders provide that each town shall choose
' a number of its inhabitants. not exceeding
seven to administer it's Affairs from year
to year. With regard TO the General Court,
il was ordered that each town should send
four deputies to represent 1t until the num-
Der OF towns should 80 increase that this
rule would make an assembly inconve-
niently large. in which case the number for
each town might be reduced. Under all
circumstance the towns were to be equally
represented. without regard TO their popu-
lation. II is this feature that gives a dis
tnctly federal character to this remarkable
constitution. With regard TO the Governor,
he was to be chosen az a popular election
without any preliminary nomination. An
election was to be held each year. in the
spring, at which every freeman was en-
titled to hand TO the proper official a paper
containing the name Of the person whom
he desired for Governor. The papers were
then counted. and the name which was
found on the greatest number Of ballots
was declared elected. Here, then. was an
example Of popular election 10y a simple
plurality vote,
MIR. fihke Joints out that this was the
first Istance Known TO history In which
n commonwealth was created in such n
way. The compact drawn UP ard sighed
by the Pilgrims in the cabin Of the May
flower is lot u constitution, because IL does
not lay down tho lines upon which govern :
ment is to be COZ structed. II is simply u
promise TO be good and to obey the laws
On tie other hand, the .Flnds ment tai
, Orders of Connecticut summon into ex-
istence State Government which is. with
strict limitations, paramount over tie local
governments of the three fowls its Great ors
Our authors comment on this remaI table
, instrument runs as follows: 1T WAS the
first written constitution known TO history
, that created government, Secondly
, il mi ks 10 allusion to ally sovereign te-
yond the seas, nor to any source Of aut hort y
! whatever, except the three towns them.
selves Thirdly, II created a State which
, was really tiny federal republic, ard il
! recognized the principle Of federal equ ali, y
. by equality Of representation among the
, towns, while, al the same time, 1t recog
, nized popular sovereignty by elccting its
1 Governor and its upper House bya plurali,
1 vote. Fourthly, let ms repeat 1t con
, fcrred upon the General Court only such
a | powers as were expressly granted IL
these peculiarities We may Zee how largcl,
IL served as a precedent for the CoLstitu
a ton of the United States" In a footnot.
: we are reminded that our colonial charters
D while In n sense constitutions, wore al
a ways in form at least, a grant OF privilege,
a from an overload TO vassal, something
= given or bartered by superior to an In
: ferior. with the constitution which ere
: ated Connecticut 1t was quite otherwise
q You may read its eleven articles from
. beginning to end and not learn from /
. that there was ever such a country a
= England or such a parsonage as the British
n Sovereign II is purely contract II
y accordance with which we, the pcopl
of these three river towns, propose to con
r. duct our public affairs. Here il the form
a Of government which commends itself t
v our Judgment and we hereby agree t
i obey it, while we reserve tho right to amen'
v il. Unlike the Declaration Of lEdepend
d ence, this document contains no theo
l. retical phrases about liberty and equality
n and IL is all the more impressive for thei
II absence. It does not deem II necessar
l. to insist upon political freedom and upo
equality before the law, but 1t takes ther
It for granted and proceeds at once to busi
% ness. Surely this was the true birth Q