Troubled Transfer of Power

Troubled Transfer of Power

When Congress urged all the colonies last May to create "such government as shall best conduce to the happiness and safety of their constituents," it was recognizing that a confused but enormously significant transfer of sovereignty has gradually been taking place during the past year. Falling from power: the British Governors, now all in flight, in prison, or in refuge behind British guns. Now in power, under congressional sanction, are the Committees of Safety, some of them vaguely derived from the once secret radical groups, but at present responsible for such local problems as the buying of militia provisions and the maintenance of public order. In between, and harassed from all sides, stand the colonial legislatures that are now charged with organizing the postcolonial era. The situation:

> Connecticut and Rhode Island have followed the easiest course by simply turning their 17th century charters into state constitutions, declaring that their governments derive authority from the people rather than the King.

> New Hampshire has had greater difficulties. Its Provincial Congress wrote to the Continental Congress last fall to report that it was in a "convuls'd state" and needed guidance "with respect to a method for our administering justice and regulating our civil police." John Adams of Massachusetts was delighted to reply (indeed he published his Thoughts on Government last January for the guidance of all legislators with similar difficulties). Said he: "[Adopt] a plan resembling the government under which we were born. Kings we never had among us. Nobles we never had. But Governors and councils we have always had as well as representatives. A legislature in three branches ought to be preserved, and independent judges." The New Hampshire legislators agreed --except that they decided not to elect a new Governor--and in January they drafted a constitution empowering a bicameral legislature to govern only "during the present unhappy and unnatural contest with Great Britain."

> South Carolina made a similar request for congressional advice and got a similar answer, but the constitution it approved in March is quite different. Unlike New Hampshire, South Carolina now has a "President and commander in chief with the power to veto bills passed by the legislature.

> The most important of the new constitutions is that of Virginia, approved just last month. The proud Virginians had no thought of asking Congress for any advice. Indeed, they considered the work being undertaken in Williamsburg at least as important as that in Philadelphia. Said Thomas Jefferson: "Should a bad government be instituted for us, it had been as well to have accepted the bad one offered us from beyond the water without the risk and expense of contest."

The chief architect of the Virginia constitution is a crotchety and reluctant statesman, an heir to a plantation of thousands of acres and many slaves, who yet is one of the most dogged champions of individual rights. His name: George Mason. Afflicted with gout, he rode into Williamsburg almost two weeks late, yet he was instantly installed as a member of the committee to draw up a declaration of rights. With typical impatience, he declared that he found the committee "according to custom overcharged with useless members" who could be expected to offer "a thousand ridiculous and impracticable proposals." Mason promptly took charge. In debate, according to one expert, he was "neither flowing nor smooth, but his language was strong, his manner most impressive, and strengthened by a dash of cynicism when provocation made it seasonable."

As a start, Mason committed to paper the basic principles of English law: the right to trial by jury, to be secure at home from unreasonable search and seizure, the writ of habeas corpus, etc. But he also added new notions. For one, that "the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments." For another, that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience." Mason had originally proposed only the "toleration" of different religious views; it was young James Madison who proposed that religious freedom become a right instead of a condescension.

None of this was accomplished without volleys of criticism from conservatives. They dissented sharply from Mason's statements that "all men are by nature equally free and independent" and that "all power is vested in and consequently derived from the people." Carter Braxton, a prominent planter, objected that "a disinterested attachment to the public good never characterized the mass of the people." And was Mason's formulation supposed to include the slaves? After four days of debate, it was agreed that all men have natural rights only "when they enter into a state of society," as the slaves clearly have not.

Frustrated at not being able to take part in such debates, Virginia's Jefferson sat down in Philadelphia and wrote his own outline for a constitution, sending it back to Williamsburg with his mentor, Lawyer George Wythe. By the time Wythe got there, however, the many arguments over Mason's draft had finally been settled. Chairman Edmund Pendleton, a distinguished lawyer, said that the members "could not, from mere lassitude, have been induced to open the instrument again." But they did like Jefferson's preamble, which contains many of the same ideas that Jefferson has included in his Declaration of Independence, so they attached that to Mason's constitution and approved it on June 29.

Now Virginia has provided not only America's first declaration of civil rights but its first fully worked out constitution. The powerful lower house is to be elected annually by the state's property owners, who will also choose senators for a four-year term. Both houses will elect a Governor of strictly limited power. As a finishing touch, just before the delegates adjourned last week, they approved a new state seal--a female figure representing Virtue and Courage, armed with a spear, standing with one foot on the corpse of Tyranny.

And so the process continues. The New Jersey legislature, recalling its sharp conflicts with the now arrested Loyalist Governor William Franklin, last week adopted a new constitution that provides for a bicameral legislature to elect a relatively powerless Governor. Only 26 of the 65 legislators voted for the measure (30 abstained and 9 opposed), however, and even they insisted that the document would be null and void in case of a reconciliation with Britain.

In Pennsylvania, where conservatives dominated the Assembly and resisted all change, some 100 delegates from local Committees of Safety converged on Philadelphia last month and worked out rules for the election of a constitutional convention. That election was held early this week, and the radicals are now in control. But how they will translate that control into a constitution remains anyone's guess.

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