CHAPTER XIV.

THE SOURCES OF THE CONSTITUTION.

REFERENCES.

Campbell, The Puritan in Holland, England, and America; Stevens, Sources of the Constitution of the U. S.; Johnston, A Century of the Constitution (New Princeton Review, Sept., 1887); Sir H. S. Maine, Popular Government, Essay IV. (The Constitution of the U.S.) The broadest features of the subject have been dealt with by Dr. Freeman, Comparative Politics, particularly Lect. II. (Greek, Roman, and Teuton.)

The sources of the National Constitution have only recently become the subject of historical discussion. They will be briefly treated in the present chapter.

241. Fiat Theory of the Constitution.-Chapters VI.-X. of this work show that, as one has said, "The Constitution was extorted from the grinding necessity of a reluctant people." When it came to ratification, the change of 3 votes out of 60 in New York, of 5 out of 168 in Virginia, and 10 out of 355 in Massachusetts, on the decisive ballots, would have sufficed to defeat that end. For reasons that are here immaterial, the spirit of opposition fully died out in three or four years, and a feeling of admiration quite as strong took its place. "The worship of the Constitution," and "the Constitution a national fetish,” are among the strong phrases that Dr. Von Holst uses to express the feeling that the instrument has commonly inspired in the hearts of Americans. Often its formation has been described as a creative act, inspired by more than human vision. This view is something very like the one that Mr. Gladstone is understood to have expressed in his famous

characterization. "As the British Constitution is the most subtle organism which has proceeded from progressive history," he says, "so the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man."

242. The Organic Theory.-The making of the American Government, as its history has been traced in Part I. of this work, suggests a very different theory. This history points, not only to a long course of political evolution that took place partly in Germany, partly in England, and partly in America, and that elaborated the materials or elements out of which the Constitution was formed, but it also reveals the real nature of the work that was done in Philadelphia in 1787. The Federal Convention did not invent new political ideas, or create new governmental institutions; what it did was to select, combine, and adjust old ideas and institutions in a manner that, in the opinion of a majority of its members would constitute a working government for the American people. In respect to elements, therefore, the American Constitution as much proceeded from progressive history as the British Constitution; and it is only in respect to this work of selection, combination, and adaptation that it can be said that it was struck off at a given time by the brain and purpose of man. And this, it is not improbable, is what Mr. Gladstone really intended to say. Still, in this second particular, there is a marked difference between the two constitutions; the parts of the one slowly grew together like a living organism, while the parts of the other, in a measure, were put together at a given time like the parts of a building. No transaction like that at Philadelphia finds a place in British constitutional history.

243. Relations of the two Constitutions. In a large sense, the new Constitution that was made was a copy of the old one that had grown. The Colonists had not revolted against the British constitution, but only against the way in which, as affected themselves, the King and Parliament made that constitution work. On the

other hand, they were as deeply attached to that constitution as it is possible for men to be attached to the institutions of their fathers. Not only is our Constitution "colored throughout by political ideas of British origin," as Sir H. S. Maine says, but it is in reality, as he also says,/ a version of the British constitution" as it existed in the latter half of the eighteenth century. Fortunately, this fact can be made to appear at the same time that some cardinal features of the American Government are explained.

244. Powers of Government.-Generally speaking, these are three in number: they are the power that enacts or makes, the power that enforces or executes, and the power that construes or interprets the law. Manifestly, good government is impossible when any one of these powers is wanting. The law must be declared, must be enforced, and must be adapted to the changing facts and circumstances that originate in human society. These powers are called the Legislative, the Executive, and the Judicial powers. While they are alike necessary, and in a sense coequal, experience shows, what philosophy also suggests, that the law-making power is the greatest of the three, and that in free countries it tends to encroach upon the other two.

245. Departments of Government.-Sometimes the three powers of government are all concentrated directly in the hands of one man or of one set of men. The result of such a state of things Mr. Madison has thus described: "The accumulation of all powers, Legislative, Executive, and Judiciary, in the same hands, whether of one, a few, or many, whether hereditary, self-appointed, or elected, may justly be pronounced the very definition of tyranny." Hence as societies have advanced, causing improvements in government, there has also been a pronounced tendency to separate the three powers, intrusting them more or less completely to different men or agents. In no country had 1 Popular Government, pp. 207, 208. 2 The Federalist, No. 47.

the distinction of the three powers been more clearly seen, and in no government had they been more fully separated, than in the England and the English government of 17751789. Three departments of government, more or less separate and distinct, bearing the names of Parliament, Crown, and Courts of Law, antedated the settlements of Jamestown and Plymouth. The members of the Federal Convention were fully instructed in these important facts. Without looking farther for reasons, we see that it was perfectly natural that they should adopt the following as the first of their resolutions: "That a National government ought to be established consisting of a supreme Legislative, Executive, and Judiciary." Accordingly, such departments were duly constituted. In the eye of political science, the Congress, Presidency, and Judiciary of our Constitution answer to the Parliament, the Crown, and the Law Courts of England. These, however, are only the larger features that were borrowed.

246. Relations of the Three Departments.--These departments are commonly described as separate, independent, and co-ordinate. This is true in the sense that they are all created by the Constitution, and that no one of them, without an act of usurpation, can be destroyed by either or both of the others. But practically the three powers are not separate and independent. The Executive has a part in making laws; Congress declares war, which is an executive act; the Senate acts with the President in making treaties and appointing officers, and is also a court for trying impeachment cases; while many provisions of law are enforced by the courts. Moreover, Congress constantly has to do with administration, particularly through the committees of the Houses.

247. Influence of the State Constitutions.-There was still another reason why the Convention created the three departments and organized the powers of government as it did. In Chapter II. it was shown that the Colonies, sovereignty aside, were miniature Englands; or, in other

words, that their institutions were produced through the transplantation and development of English institutions, and not by formal creation. It was also shown in Chapter IV. that the State governments, reorganized save in two cases, were the old Colonial governments somewhat changed and adapted to the new order of things. These governments, which had been fully tested in their essential features, were also before the statesmen of 1787, and materially influenced their discussions and conclusions. In the most direct and immediate sense, the State constitutions were in fact the models that were followed at Philadelphia.

Prof. Alexander Johnston has worked out the resemblances with much care. In all the States the three powers were intrusted to three co-ordinate branches; with two exceptions, they had bicameral legislatures; in 7, the upper house was called the Senate, in 4, the lower house, the House of Representatives; in most of the States the two houses had different bases, Connecticut, for example, making the towns equal in one house while choosing the other from the whole people-which suggested the bases of the National House of Representatives and Senate. The President stood in the room of the familiar governor, who was called president in at least 4 of the States. As a rule the governors were commanders-in-chief of the State forces, had the pardoning power, and, before the war, exercised the power of veto. The Vice-President was the lieutenant-governor reproduced. The independent judiciary, and the whole judicial system in its large features, was immediately suggested by the States. These are a few of the many interesting analogies that this writer has traced out.1

NOTE. The careful reader of Madison's reports of the debates in the Convention, and of "The Federalist," sees how the speakers and writers are constantly resorting to State experience for analogies and arguments. Sir H. S. Maine observes that Hamilton, Jay, and Madison, in writing "The Federalist," searched carefully for historical arguments with which to enforce the Constitution. (Popu lar Government, Essay IV.) They resorted to the ancient republics, to the Netherlands, to the Holy Roman Empire-sometimes for confirmation, and sometimes for the opposite; "but far the most important experience to which they appealed was that of their own country in a very recent date." "Nevertheless, there is one fund of political experience," says Maine, "upon which The "Federalist," seldom drew, and that is the political experience of Great Britain. The scanti

1 The First Century of the Constitution: New Princeton Review, Sept., 1887.