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1892. •

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1 he Constitution of the United States of America
is now a little more than a century old. At its birth
it was looked upon, even by many of its fathers, as
a new and hazardous experiment. Today, it has stood
the test of time with marked success ; it has outlived
many younger sisters, and it seems likely to remain
substantially unchanged for an indefinite period. It
has been more than once imitated wholly or in parts :
and though it has by no means proved always suitable
for transplanting, this is not to be wondered at. It was
formed by a number of highly intelligent men, as a
result of mutual concession, not to be a model system
applicable in all places at all times, but to suit the
wants and ideas of the thirteen Confederated American
States, to bind them together into a nation and to
assure to them a great future. All this it has done.

Roughly speaking, there are three theories about
the Constitution.

I st - It is unprecedented. Enthusiastic and not too
critical patriots have declared that it has no model
and have naturally compared it to Minerva springing

many of the single ! ) features were new is another
question. Professor Hart has summed them up well
in the paragraph in which he says : "In the history of
Federation the United States stands, therefore, as a
pioneer; for it was different in basis and in spirit from
any Union which had preceded it, and it has been
\ the exemplar for all subsequent confederations. /* It
"[was the first federation in history to provide itself
with an independent and adequate revenue ; it was the
first to frame a judiciary having a jurisdiction equi-
valent to the federal powers ; it was the first to
commit all external and interstate commerce to the
union; it was the first entirely to forbid treaties of
the states with foreign powers or with each other;
it was the first to enter upon a policy of dispossessing
itself of exclusive federal territory ; it was the first to
leave to the States unrestricted power over matters of
police ; it was the first to find peaceful means of
securing the obedience of States" 2 ). Be this as it may,
it is not my intention to go into the subject, nor
shall I enter into the question of what parts of the
federal Constitution are copied from those of the

*) For foreign impressions of the newness of the Am. Gov. as a
Bundesstaat compare BLUNTSCHLI'S. — "Die Griindung der Araeri-
kanischen Union" p. 24 HEINRICH VON GAGERN in his Schreiben
an den Oestreichischen Ausschuss (quoted in REIMANN'S Die Ver.
St. im Uebergange vom Staatenbund zum Bundesstaat p. 231)
MEYER'S, Deutsches Staatsrecht p. 29. SCHULZE, Deutsches Staats-
recht I p. 46; Tocqueville etc.

2 ) "Introduction to the study of federal Government in Harvard
Historical Monographs No 2. p, 50.

— 9 ~

ites, \) but shall merely attempt to point out certain
features taken directly from English or other foreign ^
models, or at least suggested by them.

But there is another and much broader field of
inquiry which no one, to my knowledge, has yet
really entered into, and which is too vast for me to
be able to give more than a slight idea of it here.
What were the general ideas of Government enter- 7\.
tained by the founders of the Constitution, what
induced them to prefer one institution to another.
It is all very well to say that they were "l ed astra y by
no theories of what might be good, but clave closely
to what experience had demonstrated to be good". 2 )
and we know that they were for the most part prac-
tical men little given to abstract reasoning. Still,
exrjerience, immensely important as it was, was by no
means their only teacher. The debates of the con-
vention were not mere discussions as to whether the
relations of the Executive to the legislative were more
satisfactorily adjusted in Massachusetts or in South
Carolina, whether the Lycian or the Achean league
had the better mode of representation. On the con-

J ) La Constitution federale differe essentiellement de la Con-
stitution des Etats Unis par le but qu'elle se propose, mais elle s'en
rapproche beaucoup quant aux moyens d'atteindre ce but. L'objet
du Gouvernement est different, mais les formes du Gouvernement
sont les raemes. TOCQUEVILLE I. p. 264. For studies of this question
see Professor ALEXANDER JOHNSON'S Article in the New Prin-
ceton Review Sept. 1887, and J. H. ROBINSON in Annals of the
American Academy of Political and Social Science Oct. 1890.

2 ) Mr. J. R. SOWELL, address before the N. Y. Reform Club
April 13. 1888.

— io —

trary, there was a great deal of searching after and
discussion of general principles, and the popular
doctrines of the day were repeatedly expressed. l )
But before trying to describe some of these, I wish
to dwell, for an instant, on those clauses that were not
affected by them ; and on certain special characteristics
of the Philadelphia Convention.

When important interests clash, no arguments of
abstract justice or historical examples suffice to recon-
cile them. Sherman and Bedford were as little moved
by the Lycian league and Montesquieu's approval of
its nature, as were the Pinckneys and Butler by
hearing Mason inveigh against slavery and discourse
on servile insurrection in Greece and Sicily. The three
compromises of the constitution were of the utmost
importance, compromises with no principle except that
of give and take. 2 j Of two of them this has always
been recognized so that nothing more need be said

*) In BLUNTSCHLI, Lehre vora modernen Staat III, 367 We find
"Die Verfassungen der Amerikanischen Gesammt-Republik und der
Landerrepubliken sind aus einer Mischung entstanden von Alt-Eng-
lischen und Amerikanischen Rechtsbegriffen, Institutionen und Sitten,
von naturrechtlichen Doctnnen und von freier Wahl des Zweck-
massigen"'. This is a good summary of the influences that formed
the constitutions but leaves all difficulties intact as to the share
of each.

2 ) Le temps fait toujours naitre a la longue chez le meme
peuple, des interets differents, et consacre des droits divers. Lors-
qu'il s'agit ensuite d'etablir une constitution generale. chacUn de ces
interets et de ces droits forme comme autant d'obstacles naturels
qui s'opposent a ce qu'aucun principe politique ne suive toutes ses
consequences. C'est done seulement a la naissance des societes
qu'on pent etre completement logique dans les lois. Tocque-
ville I. p. 206.

Sr- — II —

about them here, but the third has given such a per-
manent feature to the constitution, and has had such
an influence, even outside of America, that its origin
is often more or less overlooked. *)

The idea of having the upper house of the legis- ^^
lature represent the states and the lower the people,
was not a result of a priori reason or suggestion by
any example. When the convention met, Wilson and
Madison were as little prepared on one side to accept
such an arrangement as was Luther Martin on the
other. The fight was long and bitter, and the represen-
tatives of the larger States yielded most unwillingly. 2 j
The result arrived at may have been excellent in itself
and based on sound principles of Government, but it
was not through them that it was reached. 3 ) Nor
should it be forgotten that the exclusive right of the
lower house to originate money bills, though following

*) The Federalist is clear enough on the point LXI. (Ham.)
P. 430.

2 ) It is rather curious that four (YATES, GERRY, MARTIN,
MASON) of the Committee who brought about the compromise
afterwards opposed the whole constitution.

3 ) It is worth noting that, with all their ability, the arguments
of the Federalist must be regarded with some caution. The papers
in spite of their judicial tone were merely written to win votes.
HAMILTON declared in the last day of the convention, in which
he had not played one of the most important parts, that no man's
ideas were more remote from the plan than his own were known
to be; and he and Madison felt no responsibility for each other's
sentiments in the different papers. (SEE MADISON'S letter to
JEFFERSON. Aug. 10. 1788.) We must observe some of the same
caution about the ratifying conventions.

— 12 —

obvious examples, was still an essential part of this
compromise, in fact, the only return the larger states
got for their concession. It matters not that Madison,
Wilson and other members of the disappointed party
insisted that this was no concession at all and that
they did not care to have it; the clause was proposed
as a concession and voted as such.

It has often been pointed out that the framers
*) of the American Constitution were conservative. This
was a matter, not only of choice but of necessity.
They were, for the most part, attached to their state
Government; but even if they had not been, they
were far too wise not to put any startling innovations
into a document that had to be ratified by thirteen
different assemblies. To be sure, the political ideas of
the American masses were, many of them, exceedingly
crude; the most absurd notions were put forward and
were often received with applause. But though a bill of
rights, with a few high sounding phrases and "glittering
generalities'', would have facilitated the ratification of
the new plan, the Yankee farmer and the Pennsyl-
vania Dutchman were too cautions and shrewd at the
bottom to give up institutions with which they were
familiar and to which they were attached, in favor of
some untried scheme come from a source of which
they were only too jealous. The knowledge of this
weighed continually on the Convention, as can be
seen from numberless references, and it strengthened
the hands of the opponents of any innovation. No
wonder that the discontented members made full use of

- 13 —

such an advantage l ) and yet the final result was dange-
rously near the limit of the popular desire for reform.

Here we see one of the great differences between
the position of the Philadelphia Convention and that
of the Assemblee Constituante of two years later. 2 )
Americans have often delighted in comparing the
two, in contrasting the inborn good sense and wise
conservatism of the Anglo-Saxon with the visionary
ideas of the Frenchman. Without denying that
there is much truth in this, though the reasons,
for the fact are more historical than ethnographical,
we must not lose sight of the totally different circum-
stances under which the two bodies met, the abuses
to be reformed, and the limits to their power.

Another noteworthy circumstance of less impor-
tance at Philadelphia was the secrecy of all proceed-
ings. This had the happiest effect. Cheap eloquence
was kept within bounds ; in fact those most addicted
to it. (Martin, Mercer, Gerry) were among the least
satisfied in the end ; demagogic ideas were seldom put
forward ; the members could speak their minds
freely, discuss temperately, and, most valuable
of all, change their opinions without fear of conse-
quences. When we note besides, the small number

l ) The men who oppose a strong and energetic Government
are, in my opinion, narrow minded politicians, or are under the
influence of local views. The apprehension expressed by them that
the people will not accede to the form proposed is the ostensible,
not the real cause of opposition. But admitting the present senti-
ment to be as they prognosticate" etc. ,

Washington to HAMILTON. July io, 1787. V

3n i And of many other constitutional conventions.

- 14 —

of delegates, we can well understand the unusual
advantages of the situation.

The character of the members was also exceptional.
Their average of intelligence was very high; they were
the elite of the country, and as such not always com-
pletely in touch with the mass of their fellow citizens.
Five of the most prominent *) more than hinted at their
admiration for the British Government above all others ;
though they fully recognized that it was out of the
question to attempt to imitate it. Others had little
faith in the future of the institutions they were about
to establish. 2 ) A great proportion were lawyers; more
than half had had' the benefit of a college education, 3 )
and almost without an exception, they had had prac-
tical experience in the difficulties of Government.
From such an assembly something better was to be
expected than mere pandering to popular prejudices
or attempts to put into practice visionary schemes ;
and they did not disappoint this expectation. Their
lack of touch with the masses was strikingly shown
by the fact that there is no sign that the great majo-
rity ever grasped the importance, in the eyes of the
people, of bills of rights.

From the very beginning of the American Revo-
lution we can trace the existence of two currents of
thought, even where we can not always keep them

PINCKNEY. Comp, Bancroft's History of the Constitutions II p. 45.

») For instance GORHAM (Elliot V. 392) and WILLIAMSON
V. 359-

3 ) Comp. Bancroft's History of the Constitution II. p. 9.

— i5 —

apart. The colonies rose against the mother-country to
defend their rights, but what were those rights? natural
or historical as men or as Englishmen ? The individual
pamphleteer could dwell on either as he chose; but
when the first Congress assembled they were brought
face to face with the question as to what was the
justification for their existence. *) As long as any hope
of accommodation was left, the narrower basis was the
safer, as well as more in accordance with the ideas of
the majority of the delegates, though the Declaration
of Rights unanimously adopted, kept on both grounds. 2 )
In the Revolution the colonists were revolted British
subjects and their rights as British subjects played by
far the larger part in the movement so that the dis-
cussion on both sides of the water was chiefly a legal
one. "The debates in both Houses of Parlament,
from the accession of George hi. to the recognition
of American independence, are astonishingly unlike
those of the present day in one particular. They turn,
to a surprising extent on law, and specially on con-
stitutional law 8 ). In America "The student of (^nr/
Revolution is constantly impressed with its legal
character. The most prominent parts were played by
the jurists. The revolted colonists did not talk of their
rights as men, 4 ) but of their rights as British subjects.

x ) See ADAM'S WORKS II p. 366, 370—377.

8 ) See CURTIS'S Constitutional History of the U. S. I p. 10, 13 814.

3 ) MAINE'S Popular Government, p. 220.

*) This, as we have seen above is not wholly true. See also
STORY'S attack on JEFFERSON I ch XVI about the rights the
colonist brought over from England.

— 16 —

Their complaint was of acts of usurpation, of the vio-
lation of their chartered liberties, of the Royal en-
croachment upon legally established privileges. In
this respect they resembled the Whig leaders of the
1 7 th - Century. It has been said that the liberty which
the Anglo-Saxon race now every where enjoys is
derived from the British Constitution as settled by the
Revolution of 1688. All subsequent revolutions in
Europe are not more plainly the offspring of the
French Revolution than was ours of the Revolution
of 1688. It was founded, like that, upon a breach of
the fundamental law by the rulers. The language of
the State conventions at the time of the separation
from England, shows that the people universally re-
garded the liberties for which they were contending
as an inheritance from their forefathers. *) On the
other hand, the Declaration of Independence is based
on natural rights and, to a certain extent, the preva-
lence of bills of rights in the State Constitutions, and
the importance attached to them, can be quoted proofs
of the force of the other current.

When the separation from the mother country
was completed, although the Americans had nothing
more to do in theory with the priveleges of British
subjects, their own were descended from them; and
in spite of the increase of the tendency to speculative

l ) W. T. BRANTLY in the Southern Law Review. Vol. VI
No. 3 p. 351. For an instance of the tone see the resolution of
the Maryland Convention Jan. i8 tli - 1776. "The people of this pro-
vince, entitled to the priveleges of Englishmen and inheriting the
spirit oi their ancestors etc."

- 17 —

doctrines in the next twenty years , the habit of
seeking on all occasions for precedents, continued to .
prevail and does, in the United States, at the present
day. It is of great importance that the nature of the Q,

Revolution enabled the Americans, while detesting ->-n ;

\ \
Great Britain to admire the British constitution. Under

it they had first claimed their liberties, and they had y

I no reason for regarding it as a French Republican a

^did the ancien regime. Had it been so both the

Federal and the State constitutions would not be

what they are.

But even the rights of Englishmen and every
view of Government, however historical, must have a
groundwork of theory. Who were the theoretical
writers that had most influence in America? and what
was the nature of that influence? This is no easy

question to answer with accuracy , as the tact that


a man expresses an idea similar to one of some great

author does not prove that he has copied from the
author or even read him. When Rutledge, King and "^
Butler annonnced that property was the principle aim
of Society they may have been consciously borrowing
from Locke *) a theory that suited their circum-
stances so well; when Wilson replied to them
that "the cultivation and improvement of the
human mind was the most noble object'' it is
possible that he was deliberately falling back on

x ) "Whereas Government has no other end but the preservation
of property". — Of Civil Government Chap. V. Sec. 94. See Elliot y
V. p. 279, 280, 281, 309.


at both

in be found in other ^:ilh

we I - the day and we can

In er part ot t:

.. ig


> of whom the

Delolme. The other school


z. Both scho ted

in America. B union of 1 States

I contract of the

: the immediate ca
were in the old fashior
creed, rather than in an : of

doctrine. If men_
pathised with the French philosoph;

led to he an American reproduction of Hamp:

sti tution. Thus two distinct : i in

:.:= j- -\- ::-. : -::'.'. Lr: is examine these forces

— Eagizsh Thought in the i8**- ceninrv

nning with Locke, and here I can not do better
than again to quote Mr. L. ;

* Locke expounded the principles of the Revolution
3, and his writings became the political Bible
"of the following century. They may be taken as
-the formal apology of Whigism. He gave the source
"from which later writers drew their arguments, and
"the authority to which they appealed in fault

ument. That authority- vanished when the French
"Revolution brought deeper questions for solution and
"new methods became necessary in politics as in all
"other speculation. But during the 18 th - Cent.
-Locke's theories gave his countrymen such philo-

hical varnish as was necessary for the imbellishr:.

political pamplets and parliamentary rhetoric:
-Their success was partly due to the fact that, like
*the revolution which th :iied. thev are a

-compromise between inconsistent theories. The cha-
-racteristic quality of Locke's mind is shown in the
-tenacity with which he adheres to certain principles
-which seem to work in practice, though they
her awkwardly in any logical Framework ! . Lo
:uence in America was hardly less than in England
ias not always been so clearly recognized,
"as the greater celebrity which Rousseau gave to
ne of the same doctrines has obscured their sour :

Locke's theories fitted perfectly with the argu-
ments of the Colonies during the dispute with the
mother country. They were supported by his autho-


20 —


m rity in the claim that illegal attempts made upon their
liberties absolved them from their allegiance and gave
them the right to resist. "When the colonies in 1776
formed their Bills of rights, the great authority as to
those rights was Locke. The Bill of Rights of Massa-
chusetts, Pennsylvania, Maryland and other States set
* forth in almost the exact language of Locke, that "all
Government of right originates from the people, is
founded on compact only, and instituted solely for
the good of the whole''. x y In the fourth article of
the Pennsylvania Bill (1776) we find "all power being
"originally inherent in, and consequently derived from,
"the people, therefore all officers of the Government,
"whether legislative, or executive, are their trustees
"and servants, and at all times accountable to them". The
Whig philosopher writes: "The people alone can appoint
a form of commonwealth". 2 ) "The Legislative is a fidu-
ciary power to act for certain ends, and there remains in
the people a supreme power to remove or alter the legis-
lature''. 3 ) Lord Somers, the author of the famous Decla-
ration of Right, and whose "writing expressed concretely
what Locke formulated abstractly", 4 ) was also the author
of political tracts some of which were reprinted and
widely read in America at the time of the Revolution.
It seems more than probable that the Decla-
ration of Independence was inspired by Locke's treatise

x ) Brantly — article quoted in previous note p. 353. I have
also geneially followed him in the rest of this paragraph.

2 ) Locke Sec. 141.

3 ) Locke Sec. 149.

4 ) BRANTLY p. 355.

— 21 -

"Of Civil Government". Richard Henry Lee made the
charge and I think a comparison of the two works will
suggest the same thing to any observer. Jefferson
in his later controversy with Adams referred to the
accusation and to the one that his substance was taken
from the Declaration of Rights of 1774, remarking
quietly: "whether I had gathered my ideas from
reading or reflection, I do not know. I know only
that I turned to neither book nor pamphlet while
writing it. I did not consider it as any part of my
charge to invent new ideas altogether, and to offer
no sentiment which had ever been expressed before'*. l )
In the original draft of the Declaration it is stated
that "all men are created equal and independent*' /
which, before the last word was erased, corresponded V
exactly to the statement in the second chapter of /
the treatise "Of Civil Government'' that in the state \
of nature, men are all equal and independent''. — ' I

The whole political philosophy of Locke rests / L-^
on the simple idea that men originally in a state of
nature formed, a social compact which is the foun-
dation of Government and society, and that from this
primitive equality arises, as a natural consequence,
the sovereignty of the people, None of these prin-
ciples were, in the least, original with Locke, but he com-
bined them into an attractive system "which stamped
by his authority became the orthodox Whig doc-
trine" 2 ) and remained so until Rousseau pushing their

») JEFFERSON'S Works IV 376.

— 22 —

logical consequences to lengths before undreamt of
which the French revolution attempted to put in prac-
tice, new Schools and new theories arose, and the
political ideas of Locke became but a matter of

The belief in a state of nature is one ot the most
curious ones that has ever had great vogue in the
domain of political speculation. It did not rest on the
slightest basis of historical evidence ; on the contrary
the entire absence of such evidence was the strongest
possible argument against it. It was accepted in a
highly religious age, although it fits in as badly as
possible with the accounts in the Bible. It has been
traced back to the Roman lawyers l ) and seems a
necessary premise to an original compact, for what
else could have preceded that compact ? In the absence
of any definite knowledge on the subject, free play
was left to speculation about the condition of man-
kind in this state. Hobbes and Spinosa declared it
to be one of war. ,,Bellum omnium contra omnes";

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Online LibraryArchibald Cary CoolidgeTheoretical and foreign elements in the formation of the American Constitution → online text (page 1 of 4)