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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, khese are three in number: they are the power that enacts of 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.” 2 Hence as societies have advanced, causing it provements 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 1775– 1789. 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 inimediate 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 bouse, 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 Conven. tion, 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. (Popular 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. Thescanti
1 The First Century of the Constitution : New Princeton Review, Sept., 1887.
ness of the references [he finds but three) is at first sight inexplicable.” After a page or more of discussion, the distinguished writer finds one of the two reasons for the omission. The appeal to British experience would only have provoked prejudice and repulsion.” The other reason is that the hardest problems that were solved at Philadelphia were of a kind that did not admit of much direct assistance from the British quarter. For example the question, How shall the two Houses be constituted ? was more trying than the question whether there should be two, and what they should be called. On these secondary points, the appeal to State history was far more helpful than an appeal to any foreign source could possibly be.
The Constitution is in strictness nuther a national or a federal constitution but a composition of both in its foundation is it
federal met mcilernal; inuti sounen freon which
it from governmenetimin, concuren
in the extent of them it is federal not national, in the authoritative mode of introducing amendments it is neither wholly federal
wholly halim ui,
peltly nalernafi powers it is national
THE CONSTITUTION IN OUTLINE.
Before the student enters upon an examination of the Constitution, clause by clause, he should form a comprehensive view of it as a whole. In such a case the proper course of procedure is analysis,- from the whole to the parts. If this be not done, the study is more than likely to be fragmentary and incomplete. Again at the end, when the examination of the parts is completed, the whole Constitution should be reviewed, and again be treated as whole. To promote these ends, the following outline is presented.
248. Parts of the Constitution.—These are the Preamble, the seven Articles, and the fifteen Amendments. Most of the Articles, including the last three Amendments, are subdivided into sections, and a majority of the sections are again subdivided into clauses. In the original, the clauses are not numbered, but editors have added the numbers for convenience of citation. The formal divisions, larger and smaller, are based on the corresponding divisions of the subject-matter. Thus, Article I. relates to the Legislature; section 8 of this Article, to the general powers of Congress; clause two of the section, to the power to borrow money. The Preamble need not be further considered.
249. Article I., 10 Sections. This Article relates to the Legislative Department of the Government and connected subjects.
Section 1 vests the Legislative power in a Senate and House of Representatives.
Section 2, seven clauses, declares the composition of the House of Representatives, the length of the term, the qual