CHAPTER II.

MAKING OF THE AMERICAN CONSTITUTION.

THE political steps that led to American independence were taken gradually. At the beginning of the war, an intercolonial or "continental" Congress assembled. Gatherings, similar in principle, had been held on other occasions in colonial experience without involving a denial either of the civil rights of individual colonies or of the authority of the mother-country. Indeed, the colonists, though in no gentle mood, contemplated at first not political separation, but only defence against what they claimed to be an unconstitutional attack upon their liberties as English subjects; and Englishmen had many a time in the history of the mother-land itself taken up arms for the preservation of liberties.[1] But the logic of events on American soil slowly shaped the issue, and the Congress was forced more and more into acts involving the assumption of sovereign power, and plainly inconsistent with loyalty to the crown. For awhile even these were excused, on the plea of temporary emergency. Repeatedly, and even to the last, did the colonies address petitions to the king, regretting the necessity to which they were driven, and urging, in the old words of English usage, "redress of grievances" for the restoration of peace and unity. Yet, step by step, as by a resistless destiny, were they swept on toward the complete severance of the old relations. Opinion changed with the progress of the conflict, and a popular demand for independence arose and grew into a controlling motive. The Declaration of 1776 thus resulted, and the war finally developed into a struggle for national existence.

But it is important to bear in mind, that the Revolution disarranged but slightly the fabric of government in the individual colonies. "It did not," Webster has affirmed, "subvert the local laws and local legislation." It "did not," Chancellor Kent has said, "involve in it any abolition of the common law."[2] When independence came, and the old colonies were turned into new States, no real political break occurred; but constitutions embracing the essential principles of the colonial system were adopted in all the States save two: in Delaware, Maryland, New Jersey, Pennsylvania, North Carolina, and Virginia in 1776; New York and Georgia in 1777; South Carolina in 1778; Massachusetts in 1780; and in New Hampshire in 1784.[3] Connecticut and Rhode Island were the exceptions, and, as already seen, the former continued under its royal charter until 1818, and the latter until so late as 1842, i.e. until within living memory.[4] As Professor Johnson has said, these "new constitutions were the natural outgrowths of the colonial system, established by charters, or by commissions to royal or proprietary governors; and the provisions of the constitutions were only attempts to adopt such features as had grown up under the colonial systems, or to cut out such features as colonial or State experience had satisfied the people were dangerous."[5] And as the political usage of the colonies had come originally from Great Britain, and had been adapted and modified in colonial practice, so now that political usage passed on to the constitutions of the new States, to be again adapted and modified by varying wants as such might arise, but with essential characteristics still maintained and steadily transmitted.

From the nature of the case, there could be no settled central government for the newly forming nationality in the early stages of the contest, and before independence had been formally proclaimed. In assuming governmental functions, the Continental Congress became essentially a revolutionary body. Its existence was simply the result of an emergency created by the need of united opposition to the home authorities. Its powers rested upon the acquiescence of the several colonies and were temporary and transitional. And it was regarded, while it lasted, as an advisory assembly rather than a government.

But when the centre of colonial unity in the crown was lost by the Declaration of Independence of 1776, a permanent union on American soil became a political necessity. And on the very day that saw the Declaration put forth, steps were taken which led to the adoption, in the following year, of "Articles of Confederation and Perpetual Union," binding all the States in a "firm league of friendship with each other." This earliest attempt at the construction of a national government established what, as the sequel proved, was neither national nor a government. In reality it was a mere league of States, allied for common aims, but with each State reserving to itself almost all elements of power, and conceding to the common administration little else than responsibilities without the means of meeting them. Its main feature was a congress of one house, without an executive, and without any proper judiciary. It was, perhaps, the nearest approach to central authority then attainable; but, modelled upon the previous Revolutionary government, and perhaps, in part upon Dutch ideas borrowed from the Netherlands, it was a radical departure from long-established usage of the English race.[6] Not to trace its disastrous history in detail, enough to say, that its incompetency for all the purposes for which it was established, brought about, after ten years of failure, its utter breakdown, and led to the calling, by general demand, of the Constitutional Convention which met in Philadelphia in 1787, and framed the present Constitution of the United States.[7]

The moment for final constitutional action was well chosen. A healthy change from the spirit of reaction against all authority — a spirit which manifested itself at the close of the war — had gradually come over the young nation. Modern democracy, bred of the French Revolution, was not yet the dangerous force it was so soon to be in America and Europe.[8] The leaders of opinion and action had learned wisdom by their unsuccessful experiment with constitutional novelties under the Confederation, and were inclined to distrust political theory, as distinct from sound and practical political experience. "The spirit of 1787 was an English spirit, and therefore a conservative, tinged, no doubt, by the hatred of tyranny developed in the Revolutionary struggle, tinged also by the nascent dislike of inequality, but in the main an English spirit, which desired to walk in the old paths of precedent."[9]

No attempt was made by the Philadelphia Convention to reconstruct or even to amend the Confederation. Both it, and the peculiarities it stood for, were abandoned as by common consent. The constitution adopted was something very different. It was a return to the older forms, and a recognition of the abiding facts of English constitutional usage in America. It provided for a personal executive, a legislature of two branches, a judiciary, and — in completed stage — a bill of rights based upon! the historic liberties. The Convention practically took the model of colonial government as it had long and familiarly existed, and as adapted in the State governments then freshly set up, and applied it to the nation; introducing certain features made necessary by, the new civil conditions in America, and others drawn directly from the Constitution and contemporaneous laws and customs of Great Britain.

"No one familiar with the common law of England," remarks Mr. Justice Miller, "can read the Constitution of the United States without observing the great desire of the Convention which framed that instrument to make it conform as far as possible with that law.... To look at the general outlines organizing the new government into its various branches, there is but little departure from that of the English government. The President, the Senate, and the House of Representatives correspond in essential features with the King, Lords, and Commons of Great Britain. And although there was a necessity arising from the bringing together of thirteen different States into one general government, with a recognition of many of the most important powers of government left in the States themselves, to vary in some respects the powers which were confided to the President, the Senate, and the House of Representatives from those which had by immemorial usage come to be the powers of the King, the House of Lords, and the House of Commons of Great Britain, yet the analogy is very close."[10]

Accustomed as we are to the progress of free institutions in civilized lands during the present century, it is difficult to realize that in 1787, at the time this Convention met, the only nations that actually possessed such liberties were England and little Switzerland.[11] Had the citizens of the new commonwealth possessed no kinship with England, and no inheritance from her political system, they would still have been affected and swayed, almost of necessity, by the force of her experience and her example.

A source of literary influence in favour of English models existed in the chief political writing of the time, Montesquieu's Esprit des Lois. Though of recent date, this work had reached the position of a recognized authority on both sides of the Atlantic; and it was accepted by the leaders of the Convention as in many ways a guide for their deliberations. This political writer, impressed by the despotisms of continental Europe, had taken England as an ideal, in his philosophical disquisition on free institutions. And as Madison expresses it in the Federalist, "The British Constitution was to Montesquieu what Homer has been to the didactic writers of epic poetry. As the latter have considered the works of the immortal bard the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so the great political critic appears to have viewed the Constitution of England as the standard, or, to use his own expression, as the mirror of political liberty; and to have delivered in the form of elementary truths, the several characteristic principles of that system."[12] Notably Montesquieu's analysis of government in the threefold division of executive, legislative, and judicial, which gained world-wide acceptance as a political doctrine, was based upon the fact of the nearly complete separation of these functions in the British system. And he drew from it the special maxim: "There is no liberty if the judicial power be not separated from the legislative and the executive,"[13] — a maxim that has powerfully affected the course of American politics, though abandoned by a later political philosophy.

The law commentaries of Sir William Blackstone also influenced the Convention in the same direction. "Whenever the power of making and that of enforcing the laws are united together, there can be no public liberty," is a statement in which Blackstone evidently echoes Montesquieu.[14] And his own analysis of the English Constitution accentuates the principle of an approximately threefold division. As being the highest authority on the laws of England, his book was apparently followed by the makers of the Constitution in all branches of their work, and with a fidelity which has even called forth criticism from modern English writers.

But American political experience was, after all, the principal factor on which the Philadelphia Convention relied in its constructive task. The idea of a sharply defined threefold division of government fell in with this experience; for in all the colonies such a division had long existed, the separation of functions being more evident and extending further than in the mother-country. The colonial governor, though associated with the legislature, was independent of its control, and derived his powers from the central executive, the crown; which, also, as a matter of course, was beyond the reach of the local legislature. This latter body was never a supreme authority such as the Parliament in England, but always a separate branch of government under definite limitations. And the judiciary had its essentially distinct field of operations. Such threefold division was continued in the governments of the newly formed States. And the influence of this colonial and State usage upon the delegates was direct and powerful by reason of their lifelong contact with these governments, and also and notably because of the active part most of them had recently taken in the process of State constitution-making, — a task well fitting them for a national labour on similar lines.[15]

But American experience, let it be remembered, was not limited to the colonies and States. There had been contact all along with the English Constitution itself as the supreme constitution of the united British empire. And the Englishmen of the colonies had sympathized with and been profoundly affected by its vicissitudes. The fall of Charles I., the accession of Cromwell, the restoration of Charles II., the arbitrary reign of James II., the Revolution of 1688, and the coming in of the House of Hanover, were constitutional events, felt by them quite as really as, if less directly than, by their brethren at home, — events which left permanent results upon even their local institutions. The Constitution of the mother-land had been more than an ideal model; it had been a vital factor in the life of the American people. And there was a controlling force in the fact that until 1776 they had thus continued in unbroken touch with the ancient political fabric, in addition to having lived under an adaptation of it in their several provinces. The delegates at the Philadelphia Convention, in taking the State constitutions as a model for the new Constitution of the United States, took also the English Constitution itself, considered not merely as a theory or an ideal, but as a contemporaneous fact, and as an essential element in American political experience.

Yet the elements of the English Constitution which were thus adopted into the Constitution of the United States differ in many respects from those existing in the England of to-day. "The comparison is the more difficult," lucidly remarks an American law professor, "because the English Constitution is not a constant quantity. Like the glacier, which, though seeming fixed and rigid, is yet plastic and suffers a continual change, it has varied in each century, and sometimes in each successive generation."[16] And Sir Henry Maine touches the same point: "The Constitution of the United States is coloured throughout by political ideas of British origin, and it is in reality a version of the British Constitution as it must have presented itself to an observer in the second half of the last century."[17] And again: "The Constitution of the United States is a modified version of the British Constitution, but the British Constitution which served as its original was that which was in existence between 1760 and 1787. The modifications introduced were those, and those only, which were suggested by the new circumstances of the American colonies, now become independent."[18]

It is certainly strange that, until very recently, no popular realization of this historical truth of the derivation of the American Constitution from English originals has appeared to exist either in the mother or the daughter land. Facts bearing on the subject have been familiar to most English-speaking persons. But from the first comparative silence has prevailed on the whole question of sources, — a silence which is so noteworthy for the period of the adoption and ratification of the new Constitution by the States, as to seem to require explanation. Whatever may be said of later times, how was it possible that so little was spoken or published regarding English sources at the eventful epoch when the question of the new central government profoundly agitated the people? How can the comparative ignoring of the matter by all parties during the very season when turbulent debate was conducted upon the merits and demerits of the freshly constructed document, be accounted for?

Sir Henry Maine refers to this remarkable silence, especially as affecting the pages of the Federalist, and ventures an explanation. "There is one fountain of political experience upon which the Federalist seldom draws, and that is the political experience of Great Britain. The scantiness of these references is at first sight inexplicable. The writers must have understood Great Britain better than any other country except their own. They had been British subjects during most of their lives. They had scarcely yet ceased to breathe the atmosphere of the British Parliament, and to draw strength from its characteristic disturbances.... On the whole it cannot but be suspected that the fewness of the appeals to British historical examples had its cause in their unpopularity. The object of Madison, Hamilton, and Jay was to persuade their countrymen; and the appeal to British experience would only have provoked prejudice and repulsion."[19]

The reaction of popular sentiment, which turned the old love of England into a new feeling of hostility, certainly goes far to account for this contemporaneous silence. It is true that the Americans had but recently emerged from British rule, but that rule had been put aside in consequence of a hard-fought war, and the passions of war were still too fresh to permit the use of arguments based upon British experience in favour of any document commended for adoption by the people.

Yet the noted author just quoted but partly indicates the reason for the phenomenon in question. He appears to be thinking of the public utterances of the leaders, and to have in mind only the English Constitution of that period. And a distinction is important to remember, — that the American Constitution, though reflecting a contemporaneous stage, was not a mere imitation of the Constitution of the mother-land, but an historical development from it. Its similarity to its prototype resulted not from any copying process first undertaken in the Convention at Philadelphia. Rather was it a reaffirmation of principles already American by hereditary usage or long-established custom. The earliest attempt at a national constitution, that of the Confederation, had been a failure precisely as to the points in which it departed from these principles; and the present Constitution was a return to a system from which the colonies themselves had never departed.[20] Hamilton, Madison, Jay, and others had no need to argue for the adoption of English constitutional usage as such, to a people who were already accustomed to it as their own. Little was said, for little needed to be said. The people thought and acted from long-acquired habit. Even the members of the Convention, though consciously taking much from the old system, were doubtless incompletely aware of the extent to which they themselves were influenced by their training under such institutions.[21] The establishment of a permanent constitution of any other than an English character would probably have been an impossibility. This is sufficient to account for relative silence as to sources at the time and ever since. Americans then regarded and still regard their constitutional principles as essentially their own, — English constitutional principles having become American constitutional principles.[22]

By a process of adoption and adaptation, rather than of new creation, the Convention at Philadelphia gave the highest evidence of its sagacity. "The American Constitution," says Mr. Bryce, "is no exception to the rule that everything which has power to win the obedience and respect of men must have its roots deep in the past, and that the more slowly every institution has grown, so much the more enduring is it likely to prove. There is little in that Constitution that is absolutely new. There is much that is as old as Magna Charta."[23] The delegates of the Convention "had neither the rashness nor the capacity for constructing a constitution a priori. There is wonderfully little genuine inventiveness in the world, and perhaps least of all has been shown in the sphere of political institutions. These men, practical politicians, who knew how infinitely difficult a business government is, desired no bold experiments. They preferred, so far as circumstances permitted, to walk in the old paths, to follow methods which experience had tested."[24] Professor Johnson speaks in the same strain: "If the brilliant success of the American Constitution proves anything, it does not prove that a viable constitution can ever be struck off at a given time by the brain and purpose of man. Man may be a political animal, but in no such sense as this.... To accuse the members of having deliberately hazarded the destinies of their country upon the outcome of an entirely new and untried instrument of government, would be an injustice against which they would have been the first to protest; and yet the intensity of posterity's admiration for their success is continually tempting new writers into what is in reality just such an accusation."[25] And Mr. James Russell Lowell has observed, with his usual grace: "They had a profound disbelief in theory, and knew better than to commit the folly of breaking with the past. They were not seduced by the French fallacy, that a new system of government could be ordered like a new suit of clothes. They would as soon have thought of ordering a suit of flesh and skin. It is only on the roaring loom of time that the stuff is woven for such a vesture of thought and expression as they were meditating."[26]


[1] "A separation from Great Britain was viewed with alarm and trepidation, and was not only opposed by the Tory party as a whole, but also by many Whigs, who feared it might lead to anarchy and its attendant evils." — Straus, Origin of Republican Form of Government in the United States, 5. "It was long before the ill will, which the systematic disregard by Parliament of the rights of the colonists had excited, triumphed over this feeling. Even in August and September, 1775 — that is, half a year after the battle of Lexington — so strong was the Anglo-Saxon spirit of conservatism and loyalty among the colonists, that the few extremists who dared to speak of a violent disruption of all bonds, entailed chastisement upon themselves and were universally censured." — Von Holst, Constitutional History of the United States, I. 2. See also Works of "John Adams, II. 423, and American Archives, III. 21, 196, 644, etc. "In May, 1775, Washington said: 'If you ever hear of me joining in any such measure [as separation from Great Britain], you have my leave to set me down for everything wicked.' He had also said: 'It is not the wish or interest of the government [meaning Massachusetts], or of any other upon this continent, separately or collectively, to set up for independence.' And in the same year, Benjamin Franklin assured Chatham, that no one in America was in favour of separation. As a matter of fact, the people of the colonies wanted a redress of their grievances — they were not dreaming of separation, of independence.... We must also remember that the Revolution was begun and carried on by a noble minority — that the majority were really in favour of Great Britain." — Ingersoll, North American Review, CLV. No. 2, August, 1892, p. 183. It is proper in this connection to add, that in the opening period of the war, the feeling in England in favour of American brethren "was intense. Officers resigned their commissions rather than serve in America; the great cities took open ground in favour of the colonies; and some of the English middle classes were mourning the dead at Lexington. As the war increased in its intensity, this sentiment necessarily decreased; but even while Parliament was supporting the war by votes of more than two to one, the ministry was constantly hampered by the notorious consciousness that the real heart of England was not in it. Even when 25,000 men were voted at the king's wish, provision had to be made to obtain them from Germany." — Johnson, Encyclopedia Britannica, 9th ed., XXIII. 742.

[2] "British and colonial statutes" in operation in the colonies "prior to the Revolution continued also in force, unless expressly repealed." — The Critical Period, etc., 69.

[3] "On the 10th of May, 1776, the Continental Congress recommended to the several conventions and assemblies of the colonies the establishment of independent governments 'for maintenance of internal peace, and the defence of their lives, liberties, and properties.' Before the end of the year in which this recommendation was made, by far the greater part of the colonies had adopted written constitutions, in which were restated in a dogmatic form all of the seminal principles of the English constitutional system. Thus ended that marvellous process of growth, through which the English colonies in America were rapidly developed into a group of independent commonwealths, in which each individual member was, in its organic structure, a substantial reproduction of the English kingdom." — Origin and Growth of English Constitution, 45.

[4] "It was not possible that the term American should suddenly supplant that of Englishman; but the successive steps by which the change was accomplished are easily perceptible." — Johnson, Encyclopędia Britannica, 9th ed., XXIII. 739.

[5]New Princeton Review, September, 1887.

[6] It is to be doubted whether there was in the Articles of Confederation any intended following of Dutch institutions, though as a matter of fact, several close analogies may be drawn. But Campbell is entitled to speak on the subject. He says: "When the rebellious American colonies framed a government for themselves during the Revolutionary War, they adopted articles of confederation in which this feature of the Netherland republic was incorporated in all its fulness. Under these articles, a congress was established in which each State, whatever the number of its representatives, from two to seven, had but a single vote. This Congress also, like the States General of the Netherlands in the early days, exercised all executive powers. Neither republic had a president or other executive officer, as did their separate states. In each the legislative body made war and peace, appointed all officers, civil and military, and exercised all the functions of government except those purely judicial." — Puritan in Holland, England, and America, II. 422.

[7] "The government under the Articles of Confederation had proved so weak that by 1787 the American people were left as 'thirteen distinct communities under no effective superintending control.' [Randolph's letter, Elliot, I. 484.] The condition of the country was one in which no indication of 'national disorder, poverty, or insignificance' was wanting. [Hamilton, Federalist, No. 15.] To substitute for the decayed fabric of the Confederation a central power sufficient to cope with the existing evils was thus the task of the convention." — Publications of American Academy of Political and Social Science, No. 9, p. 204. See also Curtis, History of Constitution, etc.

[8] "Many of the fifty delegates shared Hamilton's contempt for a democracy." — Landon, Constitutional History of the United States, 64.

[9] Bryce, American Commonwealth, I. 300.

[10] Miller, Lectures on the Constitution of the United States, 486, 487. As the words of a recent justice of the Supreme Court of the United States, these words are exceedingly significant. The decisions of the Supreme Court have recognized the principle of historic continuity between English and American law.

[11] No one claims that the Constitution of the United States is indebted to Switzerland for its characteristics. In the debates of the Philadelphia Convention, Swiss institutions were mentioned only to be criticised. — See Elliot's Debates, V. 201, 208, 236. Nor is the republic of Venice worth mentioning in this connection, for it was in a state of dissolution when the Philadelphia Convention met, and it went to pieces in 1798, having in no way influenced American affairs. Douglas Campbell makes a claim, however, for the Netherlands. He says: "To the fathers of the American republic, who carried through the war of the Revolution, and afterwards formed the American Constitution, it was a living reality, as much so as the monarchy of England." — Puritan in Holland, England, and America, II. 420. But we may search in vain to find conscious copying from contemporaneous Dutch institutions in the American Constitution. At that time, as Straus remarks, "The republic of Holland was in a very precarious state, so much so, that Mr. Adams says of it, in his 'Defence of the Constitutions of Government,' 'Considering the critical situation of it, prudence dictates to pass it over!'" — Works of John Adams, IV. 356, quoted in Straus, Origin of Republican Form of Government in the United States, 83. The fact is, that notwithstanding the spirit of freedom which illumines the history of Holland, republican principles, as Americans understand them, are not to be looked for in that quarter. Charles Francis Adams, in a note to the quoted passage from the works of John Adams, remarks: "The government of Holland grew out of the immediate necessities of the heroic struggle with the power of Spain. It never could be presented as a model for imitation by any people; it was a singular combination of corporation and aristocratical influence with a federal principle. The author had good reason for avoiding, at the moment of publication, any analysis of a system which was then crumbling, and which has since been swept completely away." — p. 357. For these reasons, reference to Venice and Holland has been omitted above. It is the simple truth, that at the time of the meeting of the Constitutional Convention, the only two nations actually possessing liberties were England and Switzerland. With Venice and Holland, liberties were then little more than a memory, and neither nation was a fit model for free government.

Mr. Campbell claims that Dutch usages have crept into the Constitution by having been first incorporated into State usage, though the cases he specifies are few and doubtful. One such case, for instance, is that of the process of voting in the national Senate by States. But when this was proposed in the Philadelphia Convention, in committee of the whole, it was introduced by Roger Sherman of Connecticut, with a reference to England, not to the Netherlands.

The real attitude of the Philadelphia Convention can be gathered from a study of the debates of the members while the Constitution was being put together. So far as Dutch institutions are concerned, no one can read those debates without being forced to the conviction that Mr. Campbell has been misled, and that touching the Constitution, his book is misleading. There is no trace in the debates of any tendency on the part of the members to copy or even to admire Dutch institutions. And the few references to Holland that are to be found are usually in the form of disapproval and warning. Thus we hear Butler, when arguing in favour of a single executive, refer to "distracted Holland" as a warning of what to avoid. — Elliot's Debates, V. 149. We hear Wilson say: "Switzerland and Holland are supported in their confederation, not by its intrinsic merit, but by the incumbent pressure of surrounding bodies." — Ibid. I. 430. We hear Madison say: "The Dutch are in a most wretched situation, — weak in all its parts, and only supported by surrounding contending powers." — Ibid. 424. And we listen to the warning of Gouverneur Morris: "The United Netherlands are at this time torn in factions. With these examples before our eyes, shall we form establishments which must necessarily produce the same effects?" — Ibid. V. 287; see, also, Ibid. 154, 219, 342. The Federalist, addressing the people in favour of the new Constitution, contrasts it with the constitution of the Netherlands. The writer of No. XX. (Madison), after summarizing the Dutch system, adds: "What are the characters which practice has stamped upon it? Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace; and peculiar calamities from war. It was long ago remarked by Grotius, that nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitconstitutionl9 -->." He refers to that constitution as a "melancholy and monitory lesson of history."

In contrast with all this is the frank avowal of Hamilton in the Convention: "I believe the British government forms the best model the world ever produced." — Elliot's Debates, I. 421. And again, Pinckney's declaration: "Much has been said [in the Convention] of the Constitution of Great Britain. I am free to confess that I believe it to be the best constitution in existence." — Ibid. V. 234. Both of these men would have liked to see the British Constitution copied more nearly than the differing conditions of America permitted. References to English usages and precedents are scattered thickly through the debates, as also to the State usages which had grown up under English influence and example. Butler breaks out in complaint of this: "We are always following the British Constitution, when the reason for it does not apply." — Ibid. V. 163. Mason also complains: "We all feel too strongly the remains of ancient prejudices and view things too much through a British medium." — Ibid. V. 387. Some in the Convention opposed following English usages, — but only to find themselves in minority. Citations from the debates showing English influence could easily be multiplied. See Ibid. I. 394, 399, 409, 415, 422; V. 141, 150, 151, 152, 163, 165, 171, 178, 180, 202, 203, 231, 321, 346, 347, 370, 418, etc. Wilson refers to Anglo-colonial usage in connection with the proposal to initiate money bills in the House of Representatives: "He had observed that this discrimination had been transcribed from the British into several American constitutions." — Ibid. V. 282. And Randolph argued for the same proposal: "It would make the plan [of the Constitution] more acceptable to the people, because they will consider the Senate as the more aristocratic body, and will expect that the usual guards will be provided according to the example of Great Britain." — Ibid. V. 410. Gouverneur Morris, objecting to the extent to which the arguments from English usage were carried, exclaimed: "We should either take the British Constitution altogether, or make one for ourselves." — Ibid. V. 284.

[12]Federalist, No. 47.

[13]L'Esprit des Lois, C. VI., LIV., XI.

[14] Blackstone, Book I., Chap. III.

[15] Speaking of the division of government, Madison has said: "On the slightest view of the British Constitution we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other." — Federalist, No. 46. Referring to the constitutions of the States he adds: "If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which the axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct." — Ibid. Taylor accurately states the case: "The English maxim as to the division of powers was followed in the structure of the State constitutions only in the limited and qualified sense in which it was understood in England.... The 'literary theory' of the English Constitution misled neither Madison nor Hamilton." — Origin and Growth of the English Constitution, 46, n. 1. "The maxim as to the division of powers was accepted in the qualified sense in which it was understood by Montesquieu, who accepted it in the form in which it existed in the English system." — Ibid. 68, n. 3. Referring to this maxim of Montesquieu, Madison remarks: "He did not mean that these departments ought to have no partial agency in or no control over the acts of each other." — Federalist, No. 46. See also Paul Janet's Histoire de la Science Politique. In the Constitutional Convention at Philadelphia, "after the federal head had been split into the three departments, legislative, executive, and judicial, in the qualified sense in which such division was understood in the State constitutions, each department was organized in accordance with English ideas, in so far as could be applied to a 'composite state' at once federal and republican." — Taylor, Origin and Growth of the English Constitution, 68.

[16] J. I. Clark Hare, Notes of a Course of Lectures on American Constitutional Law, Philadelphia, 1885, p. 86.

[17]Popular Government, 249, 253.

[18]Ibid. 253.

[19]Popular Government, 206, 207.

[20] "No unbiased student of political history is disposed to ignore the great merits which are attributed to the English Constitution, due to the fact that it is the result of growth and not of manufacture. The history of fiat-constitutions ... illustrates the pitiful failures of organic law made to order; and the unhappy experiences of the many South American republics whose constitutions have been patterned after that of the United States, show that a successful form of government cannot be introduced into a country by mere importation, especially if it find no support in the political habits and character of the people." — Annals of the American Academy of Political and Social Science, April, 1891, p. 529.

[21] "An assembly could hardly have been convened in the United Kingdom more English as to race and political training than that made up of the fifty-three delegates who composed the Federal Convention. The Virginia delegation was simply a brilliant group of English country gentlemen who had been reared on the right side of the Atlantic. Alexander Hamilton and Robert Morris were born English subjects; the father of Franklin was an English emigrant from Northamptonshire; Charles Cotesworth Pinckney had been educated at Oxford and the Middle Temple; Rutledge had studied law at the Temple; and James Wilson, the most far-sighted man perhaps in the whole Convention, was born near St. Andrew's,

Scotland. As to political training, they had all been reared under the English system of local self-government which had grown up alongside of the English customary law in the several States which they represented. Those States they had helped to transform from English provinces into independent commonwealths, whose constitutions were substantial reproductions of that of the English kingdom." — Taylor, Origin and Growth of the English Constitution, 62.

[22] "Although the framers of our Constitution were without any grasp of the modern conception of the historical continuity of the race, they revered the ancient constitutional traditions of England. And thus it came to pass that Magna Charta, the Acts of the Long Parliament, the Declaration of Independence, and the Constitution of 1787 constitute the record of an evolution." — W. T. Brantly's essay, "Formation of the Federal Constitution," Southern Law Review, August, 1880, VI. 352.

[23]American Commonwealth, I. 26.

[24]Ibid. I. 31. "The American Constitution of 1787 was a faithful copy, so far as it was possible to make one out of the materials at hand, of the contemporary Constitution of England.... Allowing for the more democratic character of the constituencies, the organization of the supreme power in the United States is nearer the English type of the last century — is less modern, in fact — than is the English Constitution of the present day." — Encyclopędia Britannica, 9th ed., VI. 310, "Constitution."

[25]New Princeton Review, September, 1887.

[26]Address on Democracy, October 6, 1884. "What gives colour to the notion, that the American constitutions, both State and Federal, are the voluntary creation of man, is the fact that they are written (so-called), and that these writings have been formulated, enacted, and promulgated by representative conventions. This opinion has been so prevalent that the national habit is to look upon the members of the Convention of 1787 as demi-gods, giant heroes, far surpassing the foremost men of to-day, while the Constitution itself has been placed upon a pedestal and worshipped as a popular idol.... But by making a popular idol of it we are apt to lose the very benefits which its excellencies insure. It is the complete harmony of its principles with the political evolution of the nation which justly challenges our admiration, and not the political acumen of the convention which promulgated it. Instead, therefore, of being the voluntary creation of the American people in the eighteenth century, the Federal and State constitutions of the United States are but natural and sequential developments of the British Constitution, modified as to detail and as to a few fundamental principles by the new environment. This claim is easily substantiated by the most superficial comparison of the British and American constitutions.... And a closer study of the two systems reveals the fact that every principle brought into play by the American constitutions, that has endured and proved effectual in the attainment of the ends aimed at, was either of English origin or was the direct product of the social forces that were at play in American life." — C. D. Tiedman, Unwritten Constitution of the United States, 20, 25.


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CHAPTER II.

MAKING OF THE AMERICAN CONSTITUTION.

THE political steps that led to American independence were taken gradually. At the beginning of the war, an intercolonial or "continental" Congress assembled. Gatherings, similar in principle, had been held on other occasions in colonial experience without involving a denial either of the civil rights of individual colonies or of the authority of the mother-country. Indeed, the colonists, though in no gentle mood, contemplated at first not political separation, but only defence against what they claimed to be an unconstitutional attack upon their liberties as English subjects; and Englishmen had many a time in the history of the mother-land itself taken up arms for the preservation of liberties.[1] But the logic of events on American soil slowly shaped the issue, and the Congress was forced more and more into acts involving the assumption of sovereign power, and plainly inconsistent with loyalty to the crown. For awhile even these were excused, on the plea of temporary emergency. Repeatedly, and even to the last, did the colonies address petitions to the king, regretting the necessity to which they were driven, and urging, in the old words of English usage, "redress of grievances" for the restoration of peace and unity. Yet, step by step, as by a resistless destiny, were they swept on toward the complete severance of the old relations. Opinion changed with the progress of the conflict, and a popular demand for independence arose and grew into a controlling motive. The Declaration of 1776 thus resulted, and the war finally developed into a struggle for national existence.

But it is important to bear in mind, that the Revolution disarranged but slightly the fabric of government in the individual colonies. "It did not," Webster has affirmed, "subvert the local laws and local legislation." It "did not," Chancellor Kent has said, "involve in it any abolition of the common law."[2] When independence came, and the old colonies were turned into new States, no real political break occurred; but constitutions embracing the essential principles of the colonial system were adopted in all the States save two: in Delaware, Maryland, New Jersey, Pennsylvania, North Carolina, and Virginia in 1776; New York and Georgia in 1777; South Carolina in 1778; Massachusetts in 1780; and in New Hampshire in 1784.[3] Connecticut and Rhode Island were the exceptions, and, as already seen, the former continued under its royal charter until 1818, and the latter until so late as 1842, i.e. until within living memory.[4] As Professor Johnson has said, these "new constitutions were the natural outgrowths of the colonial system, established by charters, or by commissions to royal or proprietary governors; and the provisions of the constitutions were only attempts to adopt such features as had grown up under the colonial systems, or to cut out such features as colonial or State experience had satisfied the people were dangerous."[5] And as the political usage of the colonies had come originally from Great Britain, and had been adapted and modified in colonial practice, so now that political usage passed on to the constitutions of the new States, to be again adapted and modified by varying wants as such might arise, but with essential characteristics still maintained and steadily transmitted.

From the nature of the case, there could be no settled central government for the newly forming nationality in the early stages of the contest, and before independence had been formally proclaimed. In assuming governmental functions, the Continental Congress became essentially a revolutionary body. Its existence was simply the result of an emergency created by the need of united opposition to the home authorities. Its powers rested upon the acquiescence of the several colonies and were temporary and transitional. And it was regarded, while it lasted, as an advisory assembly rather than a government.

But when the centre of colonial unity in the crown was lost by the Declaration of Independence of 1776, a permanent union on American soil became a political necessity. And on the very day that saw the Declaration put forth, steps were taken which led to the adoption, in the following year, of "Articles of Confederation and Perpetual Union," binding all the States in a "firm league of friendship with each other." This earliest attempt at the construction of a national government established what, as the sequel proved, was neither national nor a government. In reality it was a mere league of States, allied for common aims, but with each State reserving to itself almost all elements of power, and conceding to the common administration little else than responsibilities without the means of meeting them. Its main feature was a congress of one house, without an executive, and without any proper judiciary. It was, perhaps, the nearest approach to central authority then attainable; but, modelled upon the previous Revolutionary government, and perhaps, in part upon Dutch ideas borrowed from the Netherlands, it was a radical departure from long-established usage of the English race.[6] Not to trace its disastrous history in detail, enough to say, that its incompetency for all the purposes for which it was established, brought about, after ten years of failure, its utter breakdown, and led to the calling, by general demand, of the Constitutional Convention which met in Philadelphia in 1787, and framed the present Constitution of the United States.[7]

The moment for final constitutional action was well chosen. A healthy change from the spirit of reaction against all authority — a spirit which manifested itself at the close of the war — had gradually come over the young nation. Modern democracy, bred of the French Revolution, was not yet the dangerous force it was so soon to be in America and Europe.[8] The leaders of opinion and action had learned wisdom by their unsuccessful experiment with constitutional novelties under the Confederation, and were inclined to distrust political theory, as distinct from sound and practical political experience. "The spirit of 1787 was an English spirit, and therefore a conservative, tinged, no doubt, by the hatred of tyranny developed in the Revolutionary struggle, tinged also by the nascent dislike of inequality, but in the main an English spirit, which desired to walk in the old paths of precedent."[9]

No attempt was made by the Philadelphia Convention to reconstruct or even to amend the Confederation. Both it, and the peculiarities it stood for, were abandoned as by common consent. The constitution adopted was something very different. It was a return to the older forms, and a recognition of the abiding facts of English constitutional usage in America. It provided for a personal executive, a legislature of two branches, a judiciary, and — in completed stage — a bill of rights based upon! the historic liberties. The Convention practically took the model of colonial government as it had long and familiarly existed, and as adapted in the State governments then freshly set up, and applied it to the nation; introducing certain features made necessary by, the new civil conditions in America, and others drawn directly from the Constitution and contemporaneous laws and customs of Great Britain.

"No one familiar with the common law of England," remarks Mr. Justice Miller, "can read the Constitution of the United States without observing the great desire of the Convention which framed that instrument to make it conform as far as possible with that law.... To look at the general outlines organizing the new government into its various branches, there is but little departure from that of the English government. The President, the Senate, and the House of Representatives correspond in essential features with the King, Lords, and Commons of Great Britain. And although there was a necessity arising from the bringing together of thirteen different States into one general government, with a recognition of many of the most important powers of government left in the States themselves, to vary in some respects the powers which were confided to the President, the Senate, and the House of Representatives from those which had by immemorial usage come to be the powers of the King, the House of Lords, and the House of Commons of Great Britain, yet the analogy is very close."[10]

Accustomed as we are to the progress of free institutions in civilized lands during the present century, it is difficult to realize that in 1787, at the time this Convention met, the only nations that actually possessed such liberties were England and little Switzerland.[11] Had the citizens of the new commonwealth possessed no kinship with England, and no inheritance from her political system, they would still have been affected and swayed, almost of necessity, by the force of her experience and her example.

A source of literary influence in favour of English models existed in the chief political writing of the time, Montesquieu's Esprit des Lois. Though of recent date, this work had reached the position of a recognized authority on both sides of the Atlantic; and it was accepted by the leaders of the Convention as in many ways a guide for their deliberations. This political writer, impressed by the despotisms of continental Europe, had taken England as an ideal, in his philosophical disquisition on free institutions. And as Madison expresses it in the Federalist, "The British Constitution was to Montesquieu what Homer has been to the didactic writers of epic poetry. As the latter have considered the works of the immortal bard the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so the great political critic appears to have viewed the Constitution of England as the standard, or, to use his own expression, as the mirror of political liberty; and to have delivered in the form of elementary truths, the several characteristic principles of that system."[12] Notably Montesquieu's analysis of government in the threefold division of executive, legislative, and judicial, which gained world-wide acceptance as a political doctrine, was based upon the fact of the nearly complete separation of these functions in the British system. And he drew from it the special maxim: "There is no liberty if the judicial power be not separated from the legislative and the executive,"[13] — a maxim that has powerfully affected the course of American politics, though abandoned by a later political philosophy.

The law commentaries of Sir William Blackstone also influenced the Convention in the same direction. "Whenever the power of making and that of enforcing the laws are united together, there can be no public liberty," is a statement in which Blackstone evidently echoes Montesquieu.[14] And his own analysis of the English Constitution accentuates the principle of an approximately threefold division. As being the highest authority on the laws of England, his book was apparently followed by the makers of the Constitution in all branches of their work, and with a fidelity which has even called forth criticism from modern English writers.

But American political experience was, after all, the principal factor on which the Philadelphia Convention relied in its constructive task. The idea of a sharply defined threefold division of government fell in with this experience; for in all the colonies such a division had long existed, the separation of functions being more evident and extending further than in the mother-country. The colonial governor, though associated with the legislature, was independent of its control, and derived his powers from the central executive, the crown; which, also, as a matter of course, was beyond the reach of the local legislature. This latter body was never a supreme authority such as the Parliament in England, but always a separate branch of government under definite limitations. And the judiciary had its essentially distinct field of operations. Such threefold division was continued in the governments of the newly formed States. And the influence of this colonial and State usage upon the delegates was direct and powerful by reason of their lifelong contact with these governments, and also and notably because of the active part most of them had recently taken in the process of State constitution-making, — a task well fitting them for a national labour on similar lines.[15]

But American experience, let it be remembered, was not limited to the colonies and States. There had been contact all along with the English Constitution itself as the supreme constitution of the united British empire. And the Englishmen of the colonies had sympathized with and been profoundly affected by its vicissitudes. The fall of Charles I., the accession of Cromwell, the restoration of Charles II., the arbitrary reign of James II., the Revolution of 1688, and the coming in of the House of Hanover, were constitutional events, felt by them quite as really as, if less directly than, by their brethren at home, — events which left permanent results upon even their local institutions. The Constitution of the mother-land had been more than an ideal model; it had been a vital factor in the life of the American people. And there was a controlling force in the fact that until 1776 they had thus continued in unbroken touch with the ancient political fabric, in addition to having lived under an adaptation of it in their several provinces. The delegates at the Philadelphia Convention, in taking the State constitutions as a model for the new Constitution of the United States, took also the English Constitution itself, considered not merely as a theory or an ideal, but as a contemporaneous fact, and as an essential element in American political experience.

Yet the elements of the English Constitution which were thus adopted into the Constitution of the United States differ in many respects from those existing in the England of to-day. "The comparison is the more difficult," lucidly remarks an American law professor, "because the English Constitution is not a constant quantity. Like the glacier, which, though seeming fixed and rigid, is yet plastic and suffers a continual change, it has varied in each century, and sometimes in each successive generation."[16] And Sir Henry Maine touches the same point: "The Constitution of the United States is coloured throughout by political ideas of British origin, and it is in reality a version of the British Constitution as it must have presented itself to an observer in the second half of the last century."[17] And again: "The Constitution of the United States is a modified version of the British Constitution, but the British Constitution which served as its original was that which was in existence between 1760 and 1787. The modifications introduced were those, and those only, which were suggested by the new circumstances of the American colonies, now become independent."[18]

It is certainly strange that, until very recently, no popular realization of this historical truth of the derivation of the American Constitution from English originals has appeared to exist either in the mother or the daughter land. Facts bearing on the subject have been familiar to most English-speaking persons. But from the first comparative silence has prevailed on the whole question of sources, — a silence which is so noteworthy for the period of the adoption and ratification of the new Constitution by the States, as to seem to require explanation. Whatever may be said of later times, how was it possible that so little was spoken or published regarding English sources at the eventful epoch when the question of the new central government profoundly agitated the people? How can the comparative ignoring of the matter by all parties during the very season when turbulent debate was conducted upon the merits and demerits of the freshly constructed document, be accounted for?

Sir Henry Maine refers to this remarkable silence, especially as affecting the pages of the Federalist, and ventures an explanation. "There is one fountain of political experience upon which the Federalist seldom draws, and that is the political experience of Great Britain. The scantiness of these references is at first sight inexplicable. The writers must have understood Great Britain better than any other country except their own. They had been British subjects during most of their lives. They had scarcely yet ceased to breathe the atmosphere of the British Parliament, and to draw strength from its characteristic disturbances.... On the whole it cannot but be suspected that the fewness of the appeals to British historical examples had its cause in their unpopularity. The object of Madison, Hamilton, and Jay was to persuade their countrymen; and the appeal to British experience would only have provoked prejudice and repulsion."[19]

The reaction of popular sentiment, which turned the old love of England into a new feeling of hostility, certainly goes far to account for this contemporaneous silence. It is true that the Americans had but recently emerged from British rule, but that rule had been put aside in consequence of a hard-fought war, and the passions of war were still too fresh to permit the use of arguments based upon British experience in favour of any document commended for adoption by the people.

Yet the noted author just quoted but partly indicates the reason for the phenomenon in question. He appears to be thinking of the public utterances of the leaders, and to have in mind only the English Constitution of that period. And a distinction is important to remember, — that the American Constitution, though reflecting a contemporaneous stage, was not a mere imitation of the Constitution of the mother-land, but an historical development from it. Its similarity to its prototype resulted not from any copying process first undertaken in the Convention at Philadelphia. Rather was it a reaffirmation of principles already American by hereditary usage or long-established custom. The earliest attempt at a national constitution, that of the Confederation, had been a failure precisely as to the points in which it departed from these principles; and the present Constitution was a return to a system from which the colonies themselves had never departed.[20] Hamilton, Madison, Jay, and others had no need to argue for the adoption of English constitutional usage as such, to a people who were already accustomed to it as their own. Little was said, for little needed to be said. The people thought and acted from long-acquired habit. Even the members of the Convention, though consciously taking much from the old system, were doubtless incompletely aware of the extent to which they themselves were influenced by their training under such institutions.[21] The establishment of a permanent constitution of any other than an English character would probably have been an impossibility. This is sufficient to account for relative silence as to sources at the time and ever since. Americans then regarded and still regard their constitutional principles as essentially their own, — English constitutional principles having become American constitutional principles.[22]

By a process of adoption and adaptation, rather than of new creation, the Convention at Philadelphia gave the highest evidence of its sagacity. "The American Constitution," says Mr. Bryce, "is no exception to the rule that everything which has power to win the obedience and respect of men must have its roots deep in the past, and that the more slowly every institution has grown, so much the more enduring is it likely to prove. There is little in that Constitution that is absolutely new. There is much that is as old as Magna Charta."[23] The delegates of the Convention "had neither the rashness nor the capacity for constructing a constitution a priori. There is wonderfully little genuine inventiveness in the world, and perhaps least of all has been shown in the sphere of political institutions. These men, practical politicians, who knew how infinitely difficult a business government is, desired no bold experiments. They preferred, so far as circumstances permitted, to walk in the old paths, to follow methods which experience had tested."[24] Professor Johnson speaks in the same strain: "If the brilliant success of the American Constitution proves anything, it does not prove that a viable constitution can ever be struck off at a given time by the brain and purpose of man. Man may be a political animal, but in no such sense as this.... To accuse the members of having deliberately hazarded the destinies of their country upon the outcome of an entirely new and untried instrument of government, would be an injustice against which they would have been the first to protest; and yet the intensity of posterity's admiration for their success is continually tempting new writers into what is in reality just such an accusation."[25] And Mr. James Russell Lowell has observed, with his usual grace: "They had a profound disbelief in theory, and knew better than to commit the folly of breaking with the past. They were not seduced by the French fallacy, that a new system of government could be ordered like a new suit of clothes. They would as soon have thought of ordering a suit of flesh and skin. It is only on the roaring loom of time that the stuff is woven for such a vesture of thought and expression as they were meditating."[26]


[1] "A separation from Great Britain was viewed with alarm and trepidation, and was not only opposed by the Tory party as a whole, but also by many Whigs, who feared it might lead to anarchy and its attendant evils." — Straus, Origin of Republican Form of Government in the United States, 5. "It was long before the ill will, which the systematic disregard by Parliament of the rights of the colonists had excited, triumphed over this feeling. Even in August and September, 1775 — that is, half a year after the battle of Lexington — so strong was the Anglo-Saxon spirit of conservatism and loyalty among the colonists, that the few extremists who dared to speak of a violent disruption of all bonds, entailed chastisement upon themselves and were universally censured." — Von Holst, Constitutional History of the United States, I. 2. See also Works of "John Adams, II. 423, and American Archives, III. 21, 196, 644, etc. "In May, 1775, Washington said: 'If you ever hear of me joining in any such measure [as separation from Great Britain], you have my leave to set me down for everything wicked.' He had also said: 'It is not the wish or interest of the government [meaning Massachusetts], or of any other upon this continent, separately or collectively, to set up for independence.' And in the same year, Benjamin Franklin assured Chatham, that no one in America was in favour of separation. As a matter of fact, the people of the colonies wanted a redress of their grievances — they were not dreaming of separation, of independence.... We must also remember that the Revolution was begun and carried on by a noble minority — that the majority were really in favour of Great Britain." — Ingersoll, North American Review, CLV. No. 2, August, 1892, p. 183. It is proper in this connection to add, that in the opening period of the war, the feeling in England in favour of American brethren "was intense. Officers resigned their commissions rather than serve in America; the great cities took open ground in favour of the colonies; and some of the English middle classes were mourning the dead at Lexington. As the war increased in its intensity, this sentiment necessarily decreased; but even while Parliament was supporting the war by votes of more than two to one, the ministry was constantly hampered by the notorious consciousness that the real heart of England was not in it. Even when 25,000 men were voted at the king's wish, provision had to be made to obtain them from Germany." — Johnson, Encyclopedia Britannica, 9th ed., XXIII. 742.

[2] "British and colonial statutes" in operation in the colonies "prior to the Revolution continued also in force, unless expressly repealed." — The Critical Period, etc., 69.

[3] "On the 10th of May, 1776, the Continental Congress recommended to the several conventions and assemblies of the colonies the establishment of independent governments 'for maintenance of internal peace, and the defence of their lives, liberties, and properties.' Before the end of the year in which this recommendation was made, by far the greater part of the colonies had adopted written constitutions, in which were restated in a dogmatic form all of the seminal principles of the English constitutional system. Thus ended that marvellous process of growth, through which the English colonies in America were rapidly developed into a group of independent commonwealths, in which each individual member was, in its organic structure, a substantial reproduction of the English kingdom." — Origin and Growth of English Constitution, 45.

[4] "It was not possible that the term American should suddenly supplant that of Englishman; but the successive steps by which the change was accomplished are easily perceptible." — Johnson, Encyclopædia Britannica, 9th ed., XXIII. 739.

[5] New Princeton Review, September, 1887.

[6] It is to be doubted whether there was in the Articles of Confederation any intended following of Dutch institutions, though as a matter of fact, several close analogies may be drawn. But Campbell is entitled to speak on the subject. He says: "When the rebellious American colonies framed a government for themselves during the Revolutionary War, they adopted articles of confederation in which this feature of the Netherland republic was incorporated in all its fulness. Under these articles, a congress was established in which each State, whatever the number of its representatives, from two to seven, had but a single vote. This Congress also, like the States General of the Netherlands in the early days, exercised all executive powers. Neither republic had a president or other executive officer, as did their separate states. In each the legislative body made war and peace, appointed all officers, civil and military, and exercised all the functions of government except those purely judicial." — Puritan in Holland, England, and America, II. 422.

[7] "The government under the Articles of Confederation had proved so weak that by 1787 the American people were left as 'thirteen distinct communities under no effective superintending control.' [Randolph's letter, Elliot, I. 484.] The condition of the country was one in which no indication of 'national disorder, poverty, or insignificance' was wanting. [Hamilton, Federalist, No. 15.] To substitute for the decayed fabric of the Confederation a central power sufficient to cope with the existing evils was thus the task of the convention." — Publications of American Academy of Political and Social Science, No. 9, p. 204. See also Curtis, History of Constitution, etc.

[8] "Many of the fifty delegates shared Hamilton's contempt for a democracy." — Landon, Constitutional History of the United States, 64.

[9] Bryce, American Commonwealth, I. 300.

[10] Miller, Lectures on the Constitution of the United States, 486, 487. As the words of a recent justice of the Supreme Court of the United States, these words are exceedingly significant. The decisions of the Supreme Court have recognized the principle of historic continuity between English and American law.

[11] No one claims that the Constitution of the United States is indebted to Switzerland for its characteristics. In the debates of the Philadelphia Convention, Swiss institutions were mentioned only to be criticised. — See Elliot's Debates, V. 201, 208, 236. Nor is the republic of Venice worth mentioning in this connection, for it was in a state of dissolution when the Philadelphia Convention met, and it went to pieces in 1798, having in no way influenced American affairs. Douglas Campbell makes a claim, however, for the Netherlands. He says: "To the fathers of the American republic, who carried through the war of the Revolution, and afterwards formed the American Constitution, it was a living reality, as much so as the monarchy of England." — Puritan in Holland, England, and America, II. 420. But we may search in vain to find conscious copying from contemporaneous Dutch institutions in the American Constitution. At that time, as Straus remarks, "The republic of Holland was in a very precarious state, so much so, that Mr. Adams says of it, in his 'Defence of the Constitutions of Government,' 'Considering the critical situation of it, prudence dictates to pass it over!'" — Works of John Adams, IV. 356, quoted in Straus, Origin of Republican Form of Government in the United States, 83. The fact is, that notwithstanding the spirit of freedom which illumines the history of Holland, republican principles, as Americans understand them, are not to be looked for in that quarter. Charles Francis Adams, in a note to the quoted passage from the works of John Adams, remarks: "The government of Holland grew out of the immediate necessities of the heroic struggle with the power of Spain. It never could be presented as a model for imitation by any people; it was a singular combination of corporation and aristocratical influence with a federal principle. The author had good reason for avoiding, at the moment of publication, any analysis of a system which was then crumbling, and which has since been swept completely away." — p. 357. For these reasons, reference to Venice and Holland has been omitted above. It is the simple truth, that at the time of the meeting of the Constitutional Convention, the only two nations actually possessing liberties were England and Switzerland. With Venice and Holland, liberties were then little more than a memory, and neither nation was a fit model for free government.

Mr. Campbell claims that Dutch usages have crept into the Constitution by having been first incorporated into State usage, though the cases he specifies are few and doubtful. One such case, for instance, is that of the process of voting in the national Senate by States. But when this was proposed in the Philadelphia Convention, in committee of the whole, it was introduced by Roger Sherman of Connecticut, with a reference to England, not to the Netherlands.

The real attitude of the Philadelphia Convention can be gathered from a study of the debates of the members while the Constitution was being put together. So far as Dutch institutions are concerned, no one can read those debates without being forced to the conviction that Mr. Campbell has been misled, and that touching the Constitution, his book is misleading. There is no trace in the debates of any tendency on the part of the members to copy or even to admire Dutch institutions. And the few references to Holland that are to be found are usually in the form of disapproval and warning. Thus we hear Butler, when arguing in favour of a single executive, refer to "distracted Holland" as a warning of what to avoid. — Elliot's Debates, V. 149. We hear Wilson say: "Switzerland and Holland are supported in their confederation, not by its intrinsic merit, but by the incumbent pressure of surrounding bodies." — Ibid. I. 430. We hear Madison say: "The Dutch are in a most wretched situation, — weak in all its parts, and only supported by surrounding contending powers." — Ibid. 424. And we listen to the warning of Gouverneur Morris: "The United Netherlands are at this time torn in factions. With these examples before our eyes, shall we form establishments which must necessarily produce the same effects?" — Ibid. V. 287; see, also, Ibid. 154, 219, 342. The Federalist, addressing the people in favour of the new Constitution, contrasts it with the constitution of the Netherlands. The writer of No. XX. (Madison), after summarizing the Dutch system, adds: "What are the characters which practice has stamped upon it? Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace; and peculiar calamities from war. It was long ago remarked by Grotius, that nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitution." He refers to that constitution as a "melancholy and monitory lesson of history."

In contrast with all this is the frank avowal of Hamilton in the Convention: "I believe the British government forms the best model the world ever produced." — Elliot's Debates, I. 421. And again, Pinckney's declaration: "Much has been said [in the Convention] of the Constitution of Great Britain. I am free to confess that I believe it to be the best constitution in existence." — Ibid. V. 234. Both of these men would have liked to see the British Constitution copied more nearly than the differing conditions of America permitted. References to English usages and precedents are scattered thickly through the debates, as also to the State usages which had grown up under English influence and example. Butler breaks out in complaint of this: "We are always following the British Constitution, when the reason for it does not apply." — Ibid. V. 163. Mason also complains: "We all feel too strongly the remains of ancient prejudices and view things too much through a British medium." — Ibid. V. 387. Some in the Convention opposed following English usages, — but only to find themselves in minority. Citations from the debates showing English influence could easily be multiplied. See Ibid. I. 394, 399, 409, 415, 422; V. 141, 150, 151, 152, 163, 165, 171, 178, 180, 202, 203, 231, 321, 346, 347, 370, 418, etc. Wilson refers to Anglo-colonial usage in connection with the proposal to initiate money bills in the House of Representatives: "He had observed that this discrimination had been transcribed from the British into several American constitutions." — Ibid. V. 282. And Randolph argued for the same proposal: "It would make the plan [of the Constitution] more acceptable to the people, because they will consider the Senate as the more aristocratic body, and will expect that the usual guards will be provided according to the example of Great Britain." — Ibid. V. 410. Gouverneur Morris, objecting to the extent to which the arguments from English usage were carried, exclaimed: "We should either take the British Constitution altogether, or make one for ourselves." — Ibid. V. 284.

[12] Federalist, No. 47.

[13] L'Esprit des Lois, C. VI., LIV., XI.

[14] Blackstone, Book I., Chap. III.

[15] Speaking of the division of government, Madison has said: "On the slightest view of the British Constitution we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other." — Federalist, No. 46. Referring to the constitutions of the States he adds: "If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which the axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct." — Ibid. Taylor accurately states the case: "The English maxim as to the division of powers was followed in the structure of the State constitutions only in the limited and qualified sense in which it was understood in England.... The 'literary theory' of the English Constitution misled neither Madison nor Hamilton." — Origin and Growth of the English Constitution, 46, n. 1. "The maxim as to the division of powers was accepted in the qualified sense in which it was understood by Montesquieu, who accepted it in the form in which it existed in the English system." — Ibid. 68, n. 3. Referring to this maxim of Montesquieu, Madison remarks: "He did not mean that these departments ought to have no partial agency in or no control over the acts of each other." — Federalist, No. 46. See also Paul Janet's Histoire de la Science Politique. In the Constitutional Convention at Philadelphia, "after the federal head had been split into the three departments, legislative, executive, and judicial, in the qualified sense in which such division was understood in the State constitutions, each department was organized in accordance with English ideas, in so far as could be applied to a 'composite state' at once federal and republican." — Taylor, Origin and Growth of the English Constitution, 68.

[16] J. I. Clark Hare, Notes of a Course of Lectures on American Constitutional Law, Philadelphia, 1885, p. 86.

[17] Popular Government, 249, 253.

[18] Ibid. 253.

[19] Popular Government, 206, 207.

[20] "No unbiased student of political history is disposed to ignore the great merits which are attributed to the English Constitution, due to the fact that it is the result of growth and not of manufacture. The history of fiat-constitutions ... illustrates the pitiful failures of organic law made to order; and the unhappy experiences of the many South American republics whose constitutions have been patterned after that of the United States, show that a successful form of government cannot be introduced into a country by mere importation, especially if it find no support in the political habits and character of the people." — Annals of the American Academy of Political and Social Science, April, 1891, p. 529.

[21] "An assembly could hardly have been convened in the United Kingdom more English as to race and political training than that made up of the fifty-three delegates who composed the Federal Convention. The Virginia delegation was simply a brilliant group of English country gentlemen who had been reared on the right side of the Atlantic. Alexander Hamilton and Robert Morris were born English subjects; the father of Franklin was an English emigrant from Northamptonshire; Charles Cotesworth Pinckney had been educated at Oxford and the Middle Temple; Rutledge had studied law at the Temple; and James Wilson, the most far-sighted man perhaps in the whole Convention, was born near St. Andrew's,

Scotland. As to political training, they had all been reared under the English system of local self-government which had grown up alongside of the English customary law in the several States which they represented. Those States they had helped to transform from English provinces into independent commonwealths, whose constitutions were substantial reproductions of that of the English kingdom." — Taylor, Origin and Growth of the English Constitution, 62.

[22] "Although the framers of our Constitution were without any grasp of the modern conception of the historical continuity of the race, they revered the ancient constitutional traditions of England. And thus it came to pass that Magna Charta, the Acts of the Long Parliament, the Declaration of Independence, and the Constitution of 1787 constitute the record of an evolution." — W. T. Brantly's essay, "Formation of the Federal Constitution," Southern Law Review, August, 1880, VI. 352.

[23] American Commonwealth, I. 26.

[24] Ibid. I. 31. "The American Constitution of 1787 was a faithful copy, so far as it was possible to make one out of the materials at hand, of the contemporary Constitution of England.... Allowing for the more democratic character of the constituencies, the organization of the supreme power in the United States is nearer the English type of the last century — is less modern, in fact — than is the English Constitution of the present day." — Encyclopædia Britannica, 9th ed., VI. 310, "Constitution."

[25] New Princeton Review, September, 1887.

[26] Address on Democracy, October 6, 1884. "What gives colour to the notion, that the American constitutions, both State and Federal, are the voluntary creation of man, is the fact that they are written (so-called), and that these writings have been formulated, enacted, and promulgated by representative conventions. This opinion has been so prevalent that the national habit is to look upon the members of the Convention of 1787 as demi-gods, giant heroes, far surpassing the foremost men of to-day, while the Constitution itself has been placed upon a pedestal and worshipped as a popular idol.... But by making a popular idol of it we are apt to lose the very benefits which its excellencies insure. It is the complete harmony of its principles with the political evolution of the nation which justly challenges our admiration, and not the political acumen of the convention which promulgated it. Instead, therefore, of being the voluntary creation of the American people in the eighteenth century, the Federal and State constitutions of the United States are but natural and sequential developments of the British Constitution, modified as to detail and as to a few fundamental principles by the new environment. This claim is easily substantiated by the most superficial comparison of the British and American constitutions.... And a closer study of the two systems reveals the fact that every principle brought into play by the American constitutions, that has endured and proved effectual in the attainment of the ends aimed at, was either of English origin or was the direct product of the social forces that were at play in American life." — C. D. Tiedman, Unwritten Constitution of the United States, 20, 25.


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