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 OF THE 
 
 AMERICAN CONSTITUTION. 
 
 INAUGURAL-DISSERTATION 
 
 ZUR ERLANGUNG DER 
 
 PHILOSOPHISCHEN DOCTORWllRDE 
 
 DER 
 
 ALBERT-LUDWIGS-UNIVERSITAT 
 
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 FREIBURG IM BREISGAU. 
 
 EINGEREICHT YON 
 
 A. C/QOOLIDGE 
 
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 BOSTON. 
 
 FREIBURG LB. 
 
 UNIVERSITATS-BUCHDRUCKEREI VON CHR, LEHMANN. 
 
 1892. • 
 
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 • • • ■ • ■ 
 
 
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 431700 
 
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 
 
 x ) HAMILTON, RANDOLPH, DICKENSON, GERRY, C. 
 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 
 
 '7 
 
 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. 
 
 2 
 
at both 
 
 in be found in other ^:ilh 
 
 we I -- the day and we can 
 
 In er part ot t: 
 
 .. ig 
 
 ind 
 - 
 
 > of whom the 
 
 Delolme. The other school 
 
 pooents 
 
 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: 
 
 on- 
 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- 
 
 >) LESLIE STEPHEN II p. I 
 
20 — 
 
 \P 
 
 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. 
 ? ) LESLIE STEPHEN II p. 136. 
 
— 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 
 history./ 
 
 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"; 
 Locke, Puffendorf, M ontesquieu, and many others 
 described it as quiet and peaceful ; Rousseau and his 
 disciples idealized it as the golden age. According 
 to the first school men originally united for self pro- 
 tection, and this is also the belief of the second 2 ) 
 who make them in their primitive State timid and 
 
 J ) For its origin See MAINE'S Ancient Law. 
 
 a ) .MONTES QUIEU (I Chap. 3) also gives weight to the 
 natural social tendency of mankind: the doctrine of Aristotle Politics 
 4 I. Ch, 
 
- 23 — 
 
 insecure ; according to Rousseau, society is merely- 
 due to the corruption and more particularly to the 
 greed of the human race. 
 
 The lack of examples of the natural state troubled, 
 not a little, many writers on the subject. Locke, 
 particularly, exerts himself to find instances l ) and 
 among other things triumphantly declares that "all 
 princes and rulers of independent governments, all 
 through the world , are in a state of nature." 2 ) It is 
 obvious how easily the Americans could apply this 
 doctrine to the states. 
 
 When the American Revolution broke out, as 
 almost all the previously constituted authorities 
 continued to exist , even if in a slightly irregular 
 fashion, the people as a whole could hardly be called 
 in a state of nature, although this opinion was advanced 
 by Patrick Henry. 3 ) With the states it was otherwise. 
 "In 1787 the states were thought to be in a state of 
 nature towards one another. Each state regarded 
 itself as sovereign and independent; to adopt a 
 national government was to quit the state of nature 
 and put on the bonds of civil society'' 4 ). The 
 Federalist declared that they ceded some of their*" 
 natural rights in order to vest the Government with 
 
 requisite powers". Madis on remarked in jth e. Con — V 
 
 vention that the federal Union might be considered *^ 
 as analogous to the fundamental compact by which 
 
 ie 4 
 
 ir v. — 
 
 *) L OCKE Chap VTTT ^ 
 <^LO£gK Chag ^ II se c^i4^> 
 a ) ADAMS Works II. 366. 368. 
 4 ) BRANTLY. p. 358. 
 
— 24 — 
 
 individuals compose one society l ) though Wilson 
 and Hamilton by attacking Luther Martin's doctrine 
 of a state of nature previous to the confederation 2 ) 
 showed that the theory was not universally accepted. 
 
 When Adams, in his work on Government wrote that 
 
 I \v 
 
 v> tt the United States of America have exhibited perhaps 
 
 the first examples of Governments erected on the 
 simple principles of nature" 3 j he also probably referred 
 to the compact theory. 
 
 m It is as the foundation of this theory that doctrines 
 of the state of nature have their practical importance. 
 The idea that all government is founded on compact 
 was current in the Western world for many gene- 
 rations 4 ). Its only rival , government by divine 
 ordination, was finally discredited in England by the 
 Revolution of 1688. Hume refused the compact 
 theory completely but with very little effect, as he 
 supplied nothing to take its place. It was the basis 
 as well for the absolutism of Hobbes as for the 
 extreme democracy of Rousseau. Two kinds of con- 
 tract are visible in it which though often confused, 
 
 f 
 
 l ) ELLIOT. V. p. 206. 
 9 ) „ V. p. 211. 
 
 3 ) ADAMS IV. p. 75. 
 
 4 ) "Wahrend Jahrhunderten war in der Staatswissenschaft die 
 Lehre in fast unbestrittener Herrschaft, dass der Staat, wenn nicht 
 die Gewalt sondern das Recht seiner Entstehung leite, ein Werk 
 des freien Vertrags aller derer sei, welche zuerst zum Staate zu- 
 sammentreten. Man dachte sicL den Staat wie eine Aktiengesellschaft 
 oder wie eine Genossenschaft von einzelnen deren jeder einen Theil 
 seiner Kraft und seiner Freiheit an den Verband aller abgebe, 
 damit er desto sicherer seiner zuriickbehaltenen Guter gereige.'* 
 BLUNTSCHLI; Die Griindung der Amerikanischen Union p. 4. 
 
— 25 — 
 
 can be traced in most writers on the subject *), The 
 contract of the people to their rulers and that of man 
 to man, the pactum subjectionis and the pactum 
 unionis. The first is the idea prevailing in most of 
 the older authors on Government including Grotius 
 and Puffendorf, and is still visible in Sidney and 
 and LOCKE. The second, the real Social Compact, was 
 first made clear by HOBBES, and then with surprisingly 
 little change used by ROUSSEAU to come to the most 
 opposite conclusions. 
 
 The Americans have never been given to much 
 unnecessary refining on theoretical questions unless 
 something was to be gained by it. They generally 
 accepted the idea that all government is founded on 
 compact 2 ) and if on the one hand the New Hampshire 
 and Massachusetts ratifying conventions in their reso- 
 lutions called the new Constitution "a solemn com- 
 pact", 3 ) the men of 1787 "were as ready to call the 
 Constitution of England a compact as so to denominate 
 the system just formed. It is true that they applied 
 the same term to a league or Confederacy, and it is 
 therefore difficult to determine the exact sense in 
 which the word was understood by them when used 
 in reference to the federal Government. 4 ) This doctrine 
 was held by both Federalists and anti Federalists. 
 
 *) For a learned work on these subjects see GIERKE-JOHANNES 
 ALTHUSIUS und dieEntwickelung der naturrechtlichenStaatstheorien. 
 
 2 ) Wilson however denied it. Elliot II, 498. 
 
 3 ) They w-ire^ quoted by Calhoun in the debate of 1833. 
 *) BRANTLY p. 359. 
 
— 26 — 
 
 John Jay declared all States to rest on social compacts; *) 
 Richard Henry Lee indignantly asked "Where is the 
 compact between nation and Government" ? 2 ) and 
 Luther Martin even went so far as to write. "When 
 once the people have exercised their power in estab- 
 lishing and forming themselves into a State Govern- 
 ment, it never devolves back to them : nor have they 
 a right to resume it or again to exercise that power 
 until such events take place as will amount to .a 
 dissolution of their State Government" ; 3 ) a theory 
 which is exactly the one on which Hobbes, a writer 
 for whom Martin could hardly have much sympathy, 
 ^ bases his w T hole fabric. 4 ) 
 )^jy The vagueness with which the word compact was 
 
 i ~ used. and understood in America in 1787 was of the 
 
 4^- I utmost importance for the future ol the country. It 
 prevented the real relation of the States to each other 
 and to both the new. and the old general Governments 
 ! from being made clear from the beginning; on compact 
 "*\~ rested many of the arguments of the supporters of 
 the old confederation and of the claims of the smaller 
 States ; on it turned the whole later questions of the 
 rights of nullification and secession. 
 
 If a state of nature is the necessary foundation 
 for an original contract of society, the sovereignty of 
 the people is the only logical result of it, even though 
 
 l ) See STORY'S Commentaries. Book III ch. 3. 
 
 2 1 Quoted in BANCROFT. History of the Constitution II p. 447. 
 
 8 ) LUTHER MARTIN'S Letter. Elliot I. p. 387. 
 
 *) Compare HOBBES LEVIATHAN Part II chap. 18. 
 

 — 27 — 
 
 countless writers many of them of eminence have 
 tried to escape this conclusion. This is even more 
 inevitably the case when only an agreement of man 
 with man is supposed, as by Hobbes, than when one 
 between ruler and people is premised as by Grotius 
 and others. This idea of the sovereiggix^ji-Jke^preTSpfe 
 is the central idea of. LOCKE'S doctrine, and it is also, 
 in a still higher degree, the corner stone of the whole 
 American political system l ). the reasons for this are^ 
 well known and were largely historical. Everything 
 tended to make the new Republic democratic, the 
 natural tendency of new countries, the character of 
 
 the early settlers and the absence of class distinctions 
 
 J i 
 
 among them, besides the fact that a King and a p-v 
 nobility were the two foes with whom it had had to \^^ 
 struggle. The personal part played by the king in 
 bringing about the Revolution is well known, better 
 indeed now than it was then; but also „The worst 
 enemy our grandfathers supposed they had in England 
 throughout their Revolution w r as the ministerial 
 majority of that House of Commons made up oi 
 placemen sitting for rotten boroughs, the sons of 
 peers, a s \l the country-gentleman, who belonged to 
 a caste as much as their first cousins who sat by 
 
 l ) Lorsqu'on veut parler des lois politiques des Etats Unis, 
 c'est toujours par le dogme de la souverainete du peuple qu'il faut 
 commencer. "Le peuple regne sur le monde politique Americain 
 comme Dieu sur l'Univers. II est la cause et la fin de toutes choses, 
 tout en sort et tout s'y absorbe". Tocquevill I Ch. 4 Compare also 
 Curtis's Constitutional History I p. 317. 
 
28 
 
 titles in the House of Lords''. *) But a belief in the 
 sovereignty of the people in this democratic country 
 was far from making all the members of the convention 
 perfect democrats any more than LOCKE was before 
 them. On the contrary, many of them believed with 
 Algernon Sidney that "the best governments of the 
 world have been composed of monarchy, aristocracy 
 and democracy' 7 2 ) they wished to have something of 
 the monarchical and aristocratical principle without 
 either a monarch or aristocrats. The use of the word 
 democracy was generally vague, a fault it has not got 
 over entirely at the present day. Gerry called it the 
 worst of political evils ; 3 ) MADISON in the Federalist 
 drew the distinction between a republic and a democracy 
 that the former was a representative system the latter not, 
 therefore the United States under the constitution came 
 under the first head. 4 ) At not far from the same time 
 Marshall declared in the Virginia Convention" We 
 idolize democracy" and that he admired the new system 
 because it was a well regulated form of that kind ; 5 ) 
 and Wilson's ideas were somewhat similar. Adams 
 finally, in his book, announced "that a sirriple and 
 perfect democracy never yet existed among men". 6 ) 
 It would be foolish to wish to ascribe the intense 
 
 1 ) CURTIS I p. 466—7. 
 
 2 ) Quoted by ADAMS IV p. 421. 
 /ft ») ELLIOT V p. 557- 
 
 1 ^ 4 ) Federalist No. X. 
 
 5 ) ELLIOT III. p. 222. 
 
 6 ) Compare ROUSSEAU "II rTa jamais existe de veritable 
 democratic et it n'en existera jamais", Contrat Social Livre III. chap. IV. 
 
— 2 9 - 
 
 feeling for liberty of the generation who lived through 
 the revolution to MlLTON, Sidney, LOCKE and other 
 writers, though their doctrines may have played a part 
 even here. In any case, their influence was much greater 
 in favor of religious toleration. It cannot be doubted that 
 the prevalence of LOCKE'S ideas combined with the diver- 
 sity of creeds in the colonies in producing the remarkable 
 liberality shown in matters of belief by the Americans, 
 very few of whom were affected by the spirit of Voltaire. 
 
 There was one thing, and one thing only to 
 damage LOCKE'S prestige in the United States and to 
 prevent men from accepting his ideas. His famous 
 constitution for Carolina, threw a deep discredit on his 
 abilities as a practical statesman, x ) and we observeTio 
 tendency to refer to his concrete recommendations. 
 In fact, before leaving him it is worth noting tha 
 his influence was that of his general ideas which 
 pervaded and in many ways ruled the thought of the 
 time ; and not that of any definite suggestions often 
 quoted and followed. 
 
 Of earlier political writers 2 ) of the same school 
 
 x ) See ADAMS remarks on the subject Vol. IV Book on 
 governments. 
 
 2 j As showing the ideas of the time, the list of authors ADAMS 
 think worthy of special discussion in his book is interesting. 
 Philosophers. Writers on Government. Opinion of historiors. 
 
 SWIFT. 
 
 MARCHIAVEL 
 
 POLYBIUS. 
 
 FRANKLIN. 
 
 A. SIDNEY. 
 
 DIONYSIUS of Hal 
 
 PRICE. 
 
 MONTESQUIEU. 
 
 cornassus. 
 
 
 HARRINGTON. 
 
 PLATO. 
 LOCKE. 
 MILTON. 
 HUME. 
 
— 30 — 
 
 we note that Harrington made property, especially 
 in land, the basis of power, favored two Houses 
 (Milton wished for but one) a relation of the Executive 
 and a long term for the Senate, and Sidney in his 
 ponderous volume dwelt on the advantages of mixed 
 Governments. 
 
 ( The name of one political writer appears again 
 and again in all discussions of the Constitution and 
 frequently with some such prefice as "great" or "cele- 
 brated" attached to it. The reader cannot help being 
 struck with the deference paid to Montesquieu. Any 
 opinion of his is seized upon with avidity as a power- 
 ful argument, and the other side never controverts 
 this opinion, but either te^s to~~prrQy^e that it has been 
 misunderstood or thax it does not apply to the case 
 in hand. The Esprit des Lois ; which was published 
 in 1748; was an epoch making work and nowhere did 
 it make more of an impression than in England. Paul 
 Janet in his "Histoire de la Politique" says it was 
 undoubtedly the greatest book of the 18 th - Century. 
 BURKE goes still farther and entitles its auther "the 
 greatest genius which has enlightened this age 7? . l ) 
 The statesmen of the Revolution seem to have shared 
 this opinion "Read the discussions of the Federal 
 convention and you encounter the thoughts and for- 
 mulas of Montesquieu at every step". 2 ) "The writers 
 
 of the Federalist are much discomposed by his 
 
 assertion that Republican Government is necessarily 
 
 J ) BURKE'S Works X 355. 
 2 ) BRANTLY: p. 360. 
 
— 3i — 
 
 associated with a small territory, and they are again 
 comforted by his admission, that this difficulty might 
 be overcome by a confederate Republic. l ) ' 
 
 Mc XEZ$P c wx$ti3 UiSn^!i ( ^ 2iLlhil„forw a fion 2 f tne 
 
 Constitution was certainly great, even if we hesitate 
 to agree to Sir Henry Maine's assertion that "It may 
 \ be confidently laid down that neither the institution 
 S of a Supreme Court nor the entire structure of the 
 Constitution of the United States ypfft the least likely) 
 to occur to any one's mind before the publication of' 
 the Esprit des Lois. 2 ) But we must be careful about 
 \ what we ascribe to this influence. As MADISON said: 
 "The British Constitution was to Montesquieu what 
 Homer has been to the didactic writers on Epic 
 Poetry. As the latter have considered the wofks 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 w^orks were to be judged, 
 so the great poHtk alcrrt i c ^ appears j o ihayfvyifiiW.fr ri the 
 constitution of England as the standard, or, to use 
 his own expression, as the mirror, of political liberty; 
 and to h av.fi deliveral, in the .form of ele mentary 
 truths, the severed characteristics of that particular 
 system". 8 ) Now, it is evident that if Montesquieu's 
 principles were formed on the British .Constitution, 
 features of that constitution, transferred, directly or 
 through the medium of examples in the State Govern- 
 
 '*) MAINE'S Popular Government p. 234 See Fed. IX. 
 *) Popular Government p. 218. 
 3 ) Federalist XL VII. 
 
i 
 
 — 32 — 
 
 eiits, to the American one, cannot be said to be due 
 to his influence only even if harmonizing with his 
 theories. Nor does the fact that his doctrines are 
 quoted as being in conformity to some institution 
 prove that they had anything to do with its creation. 
 We must therefore be very cautious in any inquiry 
 into the subject. On the other hand we can remember 
 that, as his dogmas had been violated in the Govern- 
 ment of the discredited Confederation, that very 
 discredit would tend to their honor. 
 
 Oneof^the most important principles of the great 
 
 French writer was the necessity for the separation of 
 
 (the Executive, the Legislative and the judicial powers 
 
 Jin any Government, j Aristotle was the first to point out 
 
 the existence of these powers in every State, but no 
 
 separation of them was made in antiquity *) and the 
 
 Roman law gave imperium and jurisdictio to the 
 
 same magistrates. Montesquieu contrasting in his mind 
 
 the helpless confusion of the three powers in France 
 
 with their separation, which he exaggerated in Eng- 
 
 t land, made his famous gen erali sation. Rightly or 
 
 wrongly it was implicitly accepted in England and 
 
 America, 2 ) and it weighed heavily in the scale in the 
 
 1 ) MAINE Pop. Govt. p. 219 states that it first occurs in the 
 Defensor Pacis of Marsilio da Padova (1327) and Aristotle is 
 certainly not clear on the subject. 
 
 2 ) There are numberless proofs of this. Many years later 
 JEFFERSON wrote in his autobiography p. 82. "It is not by the 
 
 I s consolidation, or concentration of power, but by their distribution, 
 that good government is affected". This does not agree with the 
 ideas of ROUSSEAU. 
 
 si 
 
— 33 — 
 
 debates as to the formation of the three branches. *) */ 
 It is obviously impossible to define the extent of 
 such an influence, to say for instance how much the 
 relations of the President to Congress were a copy 
 of those ot King and Parliament ; or of those of a 
 Governor and a legislature or a result of Book XI, 
 Chap. 6 of the Esprit des Lois. Probably different 
 members of the Convention were affected differently; 
 but, as speaking for the influence of MONTESQUIEU we 
 must notice that the discussion was much more about 
 what was theoretically the best way rather than a 
 disquisition on how well the qualified veto had worked 
 in Massachusetts and New- York, even it the very 
 words of the constitution of the former State were 
 copied into the final draft. This is not the only case * 
 where we can say that, though a previous model wasf^ 
 copied, MONTESQUIEU'S doctrines were probably the y~ 
 chief reason for its imitation; and it is perhaps true 
 that "In no other Government have these three 
 powers been so clearly separated and been provided 
 with so many means of defence against encroachment 
 as in ours'' 2 ) If we add, as we. should, to this sen- 
 tence "except those of the States" we are again 
 brought to face the difficulties of the question. 
 
 ') The Anti-Federalists declared that the separation was not 
 properly preserved. For specimens of the answers to this Fed. 
 (Mad. XL VI and ELLIOT IV. p. 12 1. SHERMAN alone spoke in 
 favor of supremacy of the legislative ELL. V. 140. 
 
 3 ) For a very different way in which the French have followed 
 the principle comp. the chap, on Droit Administratif. Dicey. Law 
 of the Constitution; Ch. on Droit Administratif. 
 
 3 
 
— 34 — 
 
 The ^Qtthai^Jlie^J^esi^ armed with a 
 
 veto for the very reasons for which MONTESQUIEU 
 advised such a step should be taken into account as 
 proving that fyiis power was not meant to be legis- 
 ( lativej even though, in the abstract, such may have 
 been its historical origin, l ) and M. ADAMS intended 
 it as such in recommending it for the Constitution of 
 Massachusetts. 2 ) It is merely a necessary defence of 
 the Executive. "Si la puissance executrice n'a pas 
 le droit d'arreter les entreprises du corps legislatif, 
 celui-ci sera despotique ; car comme il pourra se donner 
 tout le pouvoir qu'il peut imaginer, it aneantira toutes 
 les autres puissances". 3 ) 
 
 Executive and legislative powers have always 
 made their importance felt 5 it is only since the doc- 
 , trine of separation has been recognized that the 
 judiciary has begon to stand beside them, and in 
 America we have the first instance of its taking an 
 v equal position. The unique character of the supreme 
 Court of the United States has been recognized by 
 foreign observers. Here again, we see MONTESQUIEU'S 
 influence even though Maine goes too far in describing 
 one sentence of his as the principle source of the 
 provisions of the American constitution respecting the 
 
 l ) "The veto power which to clay seems purely a power to 
 prevent the passage of a prospect law, originated as a part of the 
 power to make them" E. C. MASON The Veto Power. HARVARD. 
 Hist. Mon. I. 
 
 9 ) "A balance in the legislature by three equal independent 
 branches" Works IV. 74. 
 
 3 ) Esprit des Lois. Livre XI Ch. 6. 
 
— 35 — 
 
 t federal judicature". We must not overlook indeed the 
 fact that instead of separating the judiciary from the 
 other two powers, several members of the Convention, 
 were, on the contrary, anxious to associate them in 
 the formation of the laws, *) quoting with approval 
 the Law Lords in England, and perhaps thinking, also, 
 of the rights of the French Parlements. The argument ) 
 used to satisfy them, was that the power of the ) 
 Supreme Court to pronounce on the Constitutionality ) r 
 of laws would have much the same effect in the end. ( 
 
 M. de LABOULAYE'S interesting preface to his 
 edition of MONTESQUIEU 2 ) makes the following 
 remarks 8 ). "Ce qu'on sait moins c'est l'influence de 
 MONTESQUIEU sur la Constitution des Etats Unis. 
 Qu'on lise le troisieme Chapitre du neuvieme livre 
 de l'Esprit des Lois, on y trouvera, le premier germe 
 de 1'Union. C'est la Republique de Lycie que MON- 
 TESQUIEU propose comme modele d'une belle 
 Republique federative; et cela par la raison 
 qu'on y observe la proportion des suffrages pour 
 regler le vote, les magistratures, et les impots. En 
 d'autre termes , ce ne sont point de petits Etats, 
 inegaux en richesse et en population qui obtiennent 
 une representation egale, comme cela avait lieu dans 
 les Pays Bas; l'autorite du peuple domine la souve- 
 rainete factice des provinces, l'union l'emporte sur les 
 Etats. 
 
 x ) For instance MADISON and G.MORRIS, ELLIOT V 165, 346. 
 2 ) Edition GARNIER 1876. 
 8 ) Page 16 Introduction. 
 
 3* 
 
- 36 - 
 
 C'est le probleme que les Americains avaient a 
 resoudre en 1787. Consulterent ils MONTESQUIEU ? Oui, 
 sans doute, On a conserve des notes de Washington 
 sur les differentes Constitutions federatives ; on a ete 
 surpris de voir que le General, qui n'etait pas un 
 grand erudit, avait remarque la constitution de Lycie. 
 II est evident qu'il avait emprunte sa science a l'Esprit 
 des Lois". 
 
 Had the example of the Lycian league, as brought 
 forward by MONTESQUIEU, any other role than that 
 of illustration and argument in the system of pro- 
 portionate representation as adopted in America? This 
 seems to me an open question, but we must go 
 further back than 1787 to answer it. The first pro- 
 posal for a representation of States, or rather Colonies 
 as they were then in proportion to their importance 
 is to be found in FRANKLIN'S plan of confederation 
 in 1754. Was it suggested by the Esprit des Lois? 
 Had FRANKLIN read the book at that time, only six 
 years after its publication and four after that of its 
 translation into English by THOMAS NUGENT ? I have 
 not been able to find out anything about this, but it 
 does not seem at all improbable. 
 
 So much for MONTESQUIEU'S direct influence. 
 Indirectly we also owe him much though it is even 
 more impossible to indicate it with precision. The men 
 who made the Constitution were impregnated with his 
 ideas to an extent that must have greatly affected 
 'their whole tone of political thought. Some of his 
 theories may even have been the origin of certain 
 

 — 37 - 
 
 curious fallacies current in the United States today, 
 such as, that Republics are by nature peaceful *) or 
 that "we are a plain people". Others have passed away 
 but "Perhaps the chief glory of MONTESQUIEU in the 
 eyes of the present generation is that of having been 
 a pioneer in the application of the historical method 
 to political inquiries. The Convention was fortunate 
 in having such a master. He taught them to consult 
 history rather than theory. He confirmed them in 
 their disposition to follow national precedence, and 
 inspired a cautions and deliberate spirit. We owe it 
 in part to him that our constitution was ngt constructed 
 upon abstract principles and that it was not made to 
 resemble one of those which the Abbe SiEYES, a 
 few years later, was wont to carry in his pocket". 2 ) 
 In another way M ON TESQUIEU affected indirectly, 
 but profoundly, thinkers in America. Their knowledge 
 and understanding of the British Constitution were 
 due, primarily, to him, for not only did he first explain 
 it to the world, but he inspired the whole later school 
 
 V 
 
 1 ) This is flatly denied in the Federalist VI and by E. RAN- 
 DOLPH, ELLIOT, III. 198. 
 
 2 j BRANTLY p. 363. Compare with this MAINE'S statement 
 (Ancient law p. 86.) "The Book of MONTESQUIEU, with all its 
 defects, still proceded on that Historical Method before which the 
 Law of Nature has never maintained its footing for an instant. Its 
 influence on thought ought to have been as great as its general 
 popularity, but, in fact, it was never allowed time to pat it forth, 
 for the counter hypothesis which it seemed destined to destroy, 
 passed suddenly from the forum to the sheet and became the 
 keynote of controversies far more exciting than are ever agitated 
 in the courts or the schools". The whole of this last sentence is 
 true for Prance but not for the United States. 
 
- 3« - 
 
 of "Constitutionalists'' who were extensively read. Here 
 again I cannot do better than to quote from Mr. 
 DE LABOULAYE'S Introduction : 
 
 "Le fameux chapitre de la Constitution de 
 l'Angleterre nous apprend peu de chose aujourd'hui ; 
 on a tout ecrit sur ce sujet epuise, mais en 1748 c'etait 
 une nouveaute, La Constitution Anglaise n'est pas 
 redige en articles comme nos Constitution modernes ; 
 elle repose sur un ensemble de lois, d'usage de 
 precedence qui remontent d'age en age jusqu'a la 
 grande charte. Se reconnaitre dans ce dedale etait 
 au dernier siecle le privelege des jurisconsultes parle- 
 mentaires. *) LOCKE, dans on traite du Gouvernment 
 Civile avait commence a seculariser la Science, mais 
 MONTESQUIEU est le premier qui, par un expose 
 systematique ait mis les principes de la Constitution 
 Anglaise a la portee de tout le monde. II est le 
 premier qui ait porte le flambeau dans cet ceuvre 
 massive et qui ait montre que ces vieux remparts 
 feodaux abritaient la liberte la plus large et la mieux 
 reglee. II avait fallu on coup de genie pour reunir 
 tant d'elements epars et en faire admirer la puissante 
 unite. C'etait presque une revelation. Aussi ne doit 
 on pas s'etonner qu'un jurisconsulte methodique 
 comme etait BLACKS TONE se soit fait le disciple de 
 MONTESQUIEU, et qu'il le cite comme une autorite'". 
 
 x ) Even ALGERNON SIDNEY in his Discourse of Government 
 (Sec. 37) admits : "Our law is so ambignous, perplexed and intricate 
 that tis hard to know when tis broken" and this was true both of 
 the Civil law and the constitution. 
 
— 39 - 
 
 And again in a foot note to the above. "La Con- 
 stitution d'Angleterre du Genevois DELOLME, ouvrage 
 qui est a vrai dire le developement des deux Chapitres 
 de MONTESQUIEU sur l'Angleterre, n'a paru qu'eu 
 1771". 
 
 The two chief writers of the "Constitutionalists" 
 were BLACKSTONE and DELOLME. Both were ex- 
 pounders of the principles of the English Government, 
 as the name given to the school shows, both were 
 universally read in America, and both misrepresented 
 in certain respects the subject of which they treated. 
 Every American lawyer must have read BLACKSTONE 
 and many must have been led astray "by his habit 
 common to all lawyers of his time — of applying old 
 and inapplicable terms to new institutions, and espe- 
 cially of ascribing in words to a modern and con- 
 stitutional king, the whole and perhaps more than the 
 whole of the powers actually possessed and exercised 
 by WILLIAM the Conqueror" l ) According to BLACK- 
 STONE, the two Houses of Parliament naturally drew 
 in two different directions and the Crown in a third 
 thus mutually keeping each other from exceeding their 
 proper limit. 2 ) DELOLME, who "puts into symetrical 
 shape a set of propositions which long passed current 
 with common place thinkers" 3 ) goes even farther if 
 possible, and regards the balance of the their legis 
 
 -) See Dicey. Law of the Constitution p. 7 — 10. 
 
 2 ) Comp. Commentaries I. p. 1 55* 
 
 3 ) LESLIE STEPHEN — English Thought in the 18th. Century 
 II p. 209. 
 
— 40 — 
 
 lative branches as perfect. We can thus easily under- 
 stand that in America the real position of English 
 royalty was not rightly grasped, all the more so, as 
 George ill's headstrong conduct towards the revolted 
 colonies and his recent victory over Fox's Ministry 
 would lend more color to such error. In so far as the 
 sovereign of Great Britain may have been taken as a 
 model, the members of the Convention copied an 
 institution that was not what they supposed it to be; 
 even if we may suspect that in his able parallel 
 between the King of England, the President of the 
 United States, and the Governor of New- York, *) 
 Hamilton, to help his argument, was not quite 
 ingenuous about the attributes of the first of these 
 characters. 
 
 The Constitutionalists developed the system of 
 separation of powers into one of their balance and of 
 all sorts of checks and complications. To preserve 
 liberty not only must there be an Executive, a Legis- 
 lative and a Judiciary independent of one another as 
 far as could be, but Parliament must consist of three 
 branches representing a democratic, an aristocratic, 
 and a monarchical influence, each unable to accomplish 
 anything of itself, but sufficient to restrain the other 
 two. The whole object of John Adams's book is to 
 defend and praise this complexity which led him to 
 proclaim that "the English Constitution is, in theory 
 both for the adjustment of the balance and the pre- 
 vention of its vibrations, the most stupendous fabric 
 
 ') Federalist No. LXVIII. 
 
— 4i — 
 
 of human invention." "All the world'' says Mr. Goldwin 
 Smith "went astray after constitutional kings and 
 revising Senates, imagining that this was the road to 
 British liberty". "It was partly in consequence of these 
 opinions, which were then fashionable, that the Govern- 
 ment of our "Constitution is complex and artificial. 
 The intricacies of the British Constitution are the 
 
 res ult of a slow historical developement. With us 
 they were deliberately reproduced". *) 
 
 No where is the force of these theories seen more 
 clearly than in the powers given to the President. 
 Delolme had laid down the maxim that a single 
 executive can be more easily restrained than a plural 
 one, 2 ) but it is nevertheless striking that, at a time 
 when "the very semblance of monarchy" was intensely 
 unpopular in America, the office of President should 
 have been created, vested in a single man, made in- 
 dependent of the legislative, given ample powers and 
 not even fettered by a council. 
 
 It is not so much to be wondered at that the 
 bi-cameral system was adopted for the legislative 
 branch, as it could far less easily arouse suspicion. 
 It was a familiar institution that had worked well in 
 practice and was an important feature in the reigning 
 political philosophy of the day. George Mason said 
 in the Convention that "the people of America, are 
 unsettled in their minds, and their principles fixed to 
 no object, except that a republican Government is the 
 
 *) BRANTLY p. 364. 
 
 2 ) Constitution d'Angleterre Livre II Chap. 2. 
 
— 42 — 
 
 best, and that the legislatures ought to consist of two 
 houses". *) Here I must remark that in these last 
 instances all must not be referred to purely theoretical 
 principles. The familiar examples of the English and 
 still more of the State Governments, had a great, 
 perhaps the preponderating influence on the results 
 reached. I merely wish to point out how they conform 
 to the ideas of the time. 
 
 "We have never seen in our own generation — 
 indeed the world has not seen more than once or 
 twice in all the course of history, a literature which 
 has exercised such prodigious influence over the minds 
 of men, over every cast and shade of intellect, as that 
 which emanated from Rousseau between 1749 and 
 1762. It was the first attempt to re-erect the edifice 
 of human belief "after the purely iconoclastic efforts 
 commenced by Bayle, and in part by our own Locke, 
 and consummated by Voltaire". I have inserted this 
 forcible passage from Sir Henry Maine's well known 
 book on Ancient Law 2 ) only as an introduction to a 
 much longer and more interesting quotation, embo- 
 dying a theory which we must needs examine. Spea- 
 king of the doctrine of the equality of mankind Maine 
 proceeds: — "Like all other deductions from the 
 hypothesis of a Law Natural, and like the belief itself 
 in a Law of Nature, it was languidly assented to and 
 suffered to have little influence on opinion and practice 
 until it passed out of the possession of the lawyers 
 
 x ) ELLIOT I. 429. (Yates Minutes). 
 ") Page 87. 
 
~ 43 — 
 
 into that of the literary men of the i8 th - century and 
 of the public which sat at their feet. With them it 
 became the most distinct tenet of their creed, and 
 was regarded as a summary of all the others. It is 
 probable, however, that the power which it ultimately 
 acquired over the events of 1789 was not entirely 
 owing to its popularity in France, for in the middle 
 of the century it passed over to America. The 
 American lawyers of the time, and particularly those 
 of Virginia, appear to have possessed a stock of know- 
 ledge which differed chiefly from that of their English 
 contemporaries in including much which could only 
 have been derived from the legal literature of Con- 
 tinental Europe. A very few glances at the writing 
 of Jefferson will show how strongly his mind was 
 affected by the semi-juridical, semi-popular opinions 
 which were fashionrable in France, and we cannot doubt^i 
 that it was ^sympathy with the peculiar ideas of the • 
 French jurists which led him and the other colonial 
 lawyers who guided the course of events in America 
 to join the specially French assumption, that "All 
 men are born equal" with the assumption more familiar 
 to Englishmen that all men are born free, in the veryrw 
 first lines of their Declaration of Independence. The 
 passage was one of great importance to the history of 
 the doctrine before us. The American lawyers, in thus 
 prominently and emphatically affirming the fundamental 
 equality of human beings, gave an impulse to politi- 
 cal movements in their own country, and in a less 
 degree in Great Britain, which is far from having yet 
 
— 44 — 
 
 spent itself; but besides this they returned the dogma 
 they had adopted to its home in France, endowed 
 with vastly greater energy and enjoying much greater 
 claims on general reception and respect. *) Impressed, 
 as he expressly admits, by this passage, Mr. Moeley 
 wrote in the Fortnightly Review. 2 ) tt It is indeed a 
 disputable question how much the ideas of the Colonial 
 leaders were affected by the theories of the French 
 philosophers. To the present writer it seemed that 
 the Bible had more to do with the sentiment that led 
 to the rising of the Colonies, than Rousseau and. trie 
 Social Compact. Nohodv^o weve r, wh n h-lS py^mrinprl 
 ^so much as the mere surfac e of the question, woul d 
 no w dream of denying that the Fren ch theories of 
 soc iety played an important part in the prepara tion 
 of American independence". 
 
 There is certainly much here to which we must 
 take exception. I do not know what Maine's authority is 
 for the statements that the doctrine of the equality of 
 mankind passed over to America in the middle of 
 the century or that American, and especially Virginia 
 lawyers, 3 ) had more than their English brethren a stock 
 of knowledge drawn from Continental Europe, though 
 one cannot help suspecting that it is only due to his 
 
 'J Ancient Law, page 94 — 96. 
 
 2 ) Oct. 1879. 
 
 3 ) The Virginia Bill of Rtights of June I2h 1776, which is 
 suggestive of the Declaration of Independence, "was the work of 
 GEORGE MASON, a man deeply versed in English parliamentary 
 history, but who was not indebted for any of his opinion to French 
 literary men". BRANTLY p. 354. 
 
— 45 — 
 
 examination of JEFFERSON'S writings and particularly 
 the Declaration of Independence. To this there are 
 several remarks to be made. In the first place JEFFER- 
 SON was by no means typical of the Americans of his 
 day. The turn of his mind was often entirely different 
 from that of the great majority of his fellow country- 
 men. Secondly, the assumption that "All men are 
 born equal" was not particular to the French, although 
 undoubtedly brought by them into great prominence, 
 but is a simple deduction from the old theory of a 
 state of nature, and, as we have seen, was explicitly 
 stated by LOCKE. Thirdly, "The doctrine of the equal- 
 ity of men" played indeed, no important part, either 
 at the time of the Declaration of Independence or in 
 1787. When the Constitution was adopted, there was 
 in this country, no equality of political rights. In none 
 of the states did universal suffrage prevail. The elec- 
 toral franchise was not regarded as a birth-right, although 
 all the conditions were present which were speedily 
 to make it such". *) Equality as Sir HENRY MAINE 
 himself has pointed out, has more than one interpre- 
 tation. 2 ) There is no doubt that Jefferson's cele- 
 brated sentence has greatly popularized and made a 
 dogma of a general statement which can be under- 
 stood in many ways. 
 
 That ROUSSEAU'S name was familiar in America 
 
 x ) BRANTLY. p. 355. 
 
 2 ) That "All men are equal" is one of a large number of 
 legal propositions which in progress of time have become political. 
 Ancient Laws p. 92. 
 
- 46 - 
 
 at a time that it was so famous in Europe is a safe 
 assertion. That many people had a general idea of 
 his doctrine is more than probable ; even if they had 
 only read attacks on them like DELOLME's on the sub- 
 ject of representation. l ) That not a few had perused 
 his works may also be admitted. These works had 
 attained great celebrity, and had appeared a good 
 many years before the American revolution. 2 ) Be- 
 tween that date and 1787 they were very possibly still 
 more read. Some of the French officers were sure to- 
 have been disciples of "the eloquent philosopher of 
 Geneva'' 3 ) and to have spread his ideas, but what 
 trace have we of their influence ? 
 
 In none of the debates about the Constitution in 
 the Philadelphia or the State Conventions or in the 
 Federalist is ROUSSEAU'S name once mentioned or are 
 any of his distinctive doctrines clearly put forth or 
 unmistakably referred to. John ADAMS, while occa- 
 sionally mentioning him, does not include him in the 
 list of authors that he takes the trouble to discuss 
 particularly. Wilson was one of the best read mem- 
 bers of the Convention. His library is praised by the 
 Marquis de Chastellux in 1780 as containing "all our 
 best authors on law and jurisprudence. The works 
 of MONTESQUIEU and of the Chancellor d'Aguesseau 
 hold the first rank among them and he makes them 
 his daily study", and yet WiLSON in the Pennsylvania 
 
 *) Book II Chap. 5. 
 
 a ) The Contract Social was published in 1762. 
 
 3 ) ADAMS; beginning of Chap. 1 of his book on Government. 
 
— 47 — 
 
 ratifying convention, speaking of the sovereignty of 
 the people, said il l recollect no constitution founded 
 on this principle ; but we have witnessed the improve- 
 and enjoy the happiness of seeing it carried into prac- 
 tice. The great and penetrating mind of LOCKE seems 
 to be the only one that pointed towards even the 
 theory of this great truth". ! ) Verily, if he had read 
 the Contract Social it had made but little impression. 
 It has been too much taken for granted that 
 whenever we find remarks about state ot nature and 
 social compacts, we are dealing with ideas of ROUS- 
 SEAU. Such they sometimes are, but how often are 
 they original with him ? 2 ) The greatness of his work 
 lies far less in the newness of many of his theories than 
 in the remarkable developement he gave to old notions 
 and the pitiless logic with which he pushed his con- 
 clusions to their" furthest consequences. The whole 
 foundation of his Social Compact is strikingly like 
 that of HOBBES, 3 ) and his conclusions, though at the 
 
 *) Elliot II pi 456. 
 
 2 ) Es ware Thorheit zu sagen, class die ROUSSEAU'schen 
 Schriften einen Einfluss auf die Entwickelung in Amerika ausgeiibt 
 haben. Aber derselbe Geist , welcher die ROUSSEAU'schen Philo- 
 sophic geboren und die von so ungeheurer Bedeutung fiir Europa 
 machte, war lange vordem JEFFERSON sich in Paris bis zur Thor- 
 heit in ihr berauschte — Auch in Amerika lebendig. HOLST 
 Verf. in Dem. der Vereinigten Staaten von Amerika p. 26. 
 
 8 ) It is only surprising that it was not sooner discovered that 
 HOBBES' system could easely be twisted to support an unbounded 
 popular sovereignty. JOHANN FRIEDRICH HORN, who even out- 
 did HOBBES in preaching Absolutism, alone among older writers, 
 recognized this and called HOBBES'S theories dangerous and revo- 
 lutionary. 
 
- 48 - 
 
 opposite pole of theory, are in many essential respects, 
 analogous. Mr. MORLEY himself, l ) has pointed out 
 how much ROUSSEAU borrowed from Locke and it is 
 strange that both he and Sir Henry Maine should 
 have so completely overlooked the influence of the 
 latter. Certainly the new democratic school gave a 
 very much heightened prominence to many old doc- 
 trines and made them political where they were pre- 
 viously merely philosophical. JEFFERSON had very 
 probably confirmed and cleared many of his ideas 
 from the Contract Social long before he wrote the 
 Declaration of Independence, but as we have seen, the 
 original source of that document must be traced to 
 Locke, not to Rousseau. The same could be said 
 of other publications and utterances which, at first 
 sight, one might be tempted to ascribe to French ideas. 
 In the quotations from RICHARD HENRY LEE and 
 LUTHER Martin, given above, neither of the refer- 
 ences to the social compact can fit in with the teach- 
 ings of the Contract Social; the first not, because 
 Rousseau does not admit a contract between nation 
 and government, a pactum subjectionis, the latter is but 
 the servant of the former with no rights of its own ; 
 the second not, because this attempting to bind the 
 whole people is in entire contradiction with the prin- 
 ciples of its sovereignty. Of course we can hunt up 
 or twist quotations to serve our purpose if we are de- 
 termined to find such as resemble Rousseau's teachings. 
 When Gouverneur Morris announced "that the savage 
 
 L ) In his book on ROUSSEAU. 
 
— 49 — 
 
 state was more favorable to liberty than the civilized; 
 and sufficiently so to life. It was preferred by all 
 who had not acquired a taste for property which could 
 only be secured by the restraints of regular Govern- 
 ment. *) We are reminded of the Discours sur l'inegalite 
 parmi les Hommes. When Hamilton declared "It is 
 an unquestionable truth that the body of the people 
 in every country , desire sincerely its prosperity ; but 
 it is equally unquestionable that they do not possess 
 the discernment and stability necessary for systematic 
 Government'', 2 ) we can see a likeness to sentences in 
 the Contrat Social "La volonte generale est toujours 
 
 droite et tend toujours a Putilite publique 
 
 Jamais on ne corrompt le peuple mais souvent on le 
 trompe". 3 ) There were hardly two men in the con- 
 vention less democratic than G. Morris and Hamilton. 
 
 I The latter has been described as "by far the ablest * 
 of what may be called the English theory in the Unitedy* 
 States''. 4 ) It is important testimony if the former 
 
 /were really consciously putting forth a doctrine of 
 Rousseau that he continued with the remark that 
 "these ideas might be new to some, but they were 
 nevertheless just''. Altogether we can conclude that 
 whatever may have been the case after 1789, up till 
 that time, the new school, though it must have been 
 known in America, had not made great headway ; that 
 
 x ) ELLIOT V. 279. 
 
 2 ) ELLIOT II p. 302. 
 
 s ) Contract Social Livre II Chap. 3. 
 
 4 ) LESLIE STEPHEN II p. 260. 
 
- So — 
 
 many ideas which might be attributed to it came from 
 older sources, and that the statements of Sir Henry 
 Maine and Mr. Morley are, to say the least, not 
 proven. 
 
 This may seem surprising. The Americans were 
 democratic and here was a most democratic system ; 
 their political ideas were often crude and from the 
 time of the Revolution the tendency to a priori rea- 
 soning on Government notably increased, especially 
 among the more discontented elements of the popu- 
 lation. To people who believe in a state of nature 
 and a social compact, Rousseau's theories would be 
 naturally attractive, expounded as they are in a match- 
 less style, and with what often seems to be convinc- 
 ing logic. On the other side we must remember 
 that the beauty of a style disappears in a translation, 
 and that this logic was abstract and therely not cal- 
 culated to appeal to the cautious Anglo-Saxon taste. 
 The Contrat Social made short work of the honored 
 institutions and ideas so dear to the Anglo-Saxon 
 mind; it preached a social as much as a political 
 revolution, and the majority of Americans were satis- 
 fied with the condition of society; it declared the 
 people to be every where in chains while in the years 
 preceding the meeting of the Convention men of sense 
 in America saw chiefly an abuse of liberty ; l ) it 
 condemned representative Government, 2 ) and there 
 was no country where the principle was more neces- 
 
 1 ) See MADISON'S letter to MAZZAI. 
 
 2 ) Even Sieves could not follow as far as this. 
 
sary; it advised a State religion for purely state reasons, 
 scoffed at Christianity and could hardly appeal to a 
 people devoutly christian and mostly protestant 
 dissenters who looked on any interference of the 
 State in the affairs of the church as an outrageous 
 oppression. 
 
 Even in France the ideas of Rousseau were many 
 long years before attaining the vogue they had in 1789. 
 In both divisions ot the English race, social, political, 
 historical and ethnological reasons made the ground in 
 which they were sowed unfertile for them. What Mr. 
 Leslie Stephen says of England in this connection l ) 
 applies also to America though with lesser force. "As it 
 was that Gospel never became fairly acclimatized, and 
 never won a proselyte capable, even in a faint degree, ol 
 rivalling the influence of the original teacher. English- 
 men stuck doggedly to their old ways ; they despised 
 the new ideas as much because they were supposed 
 to be French as because they could be shown to be demo- 
 ralizing. With that obstinate unreason which sometimes 
 verges on the sublime, they worked on in their slow 
 blundering fashion. When discontented they preferred 
 the traditional twaddle about the various Palladia of 
 British liberty to any new fangled outcries about the 
 rights of man''. 
 
 Two of the most prominent and most distinguish- 
 ed Americans of the day are generally quoted as 
 representing the French school of thought. This is 
 
 x ) II p. 195. 
 
52 
 
 <? 
 
 . '^ undoubtedly true of Jefferson though it is still a dis- 
 puted point how much of his opinions was due to his 
 stay in Paris. As he had nothing to do with the for- 
 mation of the constitution I shall not dwell upon him. 
 It is more doubtful, whether Franklin was really 
 seriously affected by the writings of Rousseau. What 
 is certain, however, is that he was an intimate friend 
 of both the English radical authors Priestly and Price 1 ) 
 who represented the new ideas in Great Britain, and 
 \/~ , that his opinions were not in the least those of the 
 K^ * orthodox school. In the convention he favored a plu- 
 ^<7 ral executive 2 ) and a single house 3 ) beside making 
 various other propositions most of them impractical and 
 little heeded. His chief influence was as a moderator. 4 ) 
 There yet remain to be considered a few minor 
 points in the American doctrines of 1787. We con- 
 tinually hear the praise of agriculture and notice a 
 tendency to place particular value upon land, while 
 commerce is not infrequently depreciated. We even 
 find in one of Washington's letters "It has long been 
 a speculative question among philosophers and wise 
 men whether foreign commerce is of any real advan- 
 tage to any country' ' ; 5 ) At least in the first of these 
 
 ') PRIESTLY'S Treatise on civil Government appeared 1768 
 PRICE'S Observations on Civil History appeared 1775. 
 
 2 ) or failing this, a council. ELLIO T V. 154 and 525. 
 
 3 ) He was emphatic all his life on this point. Even after the 
 Convention closed. See his letters. PRIESTLY however favored 
 two Houses. 
 
 4 ) Compare Curtis 290 — 294. 
 
 6 ) Writings IX, 140. For a good instance of this prejudice 
 see CHARLES PINCKNEY'S speech on S. Carolina. ELLIOT IV. 321- 
 
- 53 — 
 
 ideas, though they were due mainly to the fact that 
 the great majority of the Americans were connected 
 with agriculture, we can trace a remnant of the doc- 
 trines of the Physocratic school *) which had only re- 
 cently been driven out of the field by Adam Smith. 2 ) 
 It is curious that the Philadelphia Convention 
 adopted one or two very important principles with 
 little or no discussion of their nature. In the different 
 French constitutions, both integral and partial renewal 
 have been often tried with no very great success. 
 In the American one both systems were applied in a 
 way that has given satisfaction ever since. Again, 
 the French have made numerous experiments with 
 both Scrutin de Liste and Scrutin d'Arrondissement, and 
 the subject has been discussed repeatedly. In the 
 Fnited States the matter was arranged without trouble 
 
 and both these questions may be regarded as settled 
 
 mi**?** 
 while it is very doubtful if they are as yet in France. 
 
 The mode of electing the President by Electors was kJUd 
 
 very possibly taken from Maryland, 3 ), but this idea (**** 
 
 of an election in two degress, a new principle, totally 
 
 unknown to English example and theories, was accepted 
 
 by a weary convention with surprisingly little discussion 
 
 as to its own merits, and met with no criticism from 
 
 the public. 4 ) 
 
 Y& 
 
 1 ) HARRINGTON also dwells on the importance of land. 
 
 2 ) The Wealth of Nations appeared in 1776. 
 
 3 ) BOWDOIN in the Mass. Convention ( ELLIOT II 128). It 
 is worth noting that he was the only person to state this and he 
 used the word "probably". 
 
 *) Federalist LXVII, 
 
^ 
 
 54 ~ 
 
 There is one more influence to point out before 
 ^taking leave of this part of the subject, and that is 
 the fact that most of the Americans were Protestants 
 of the Calvinistic type. This bears on the case from 
 the doctrine of original sin, the natural perversity of 
 mankind. Judging from a great number of remarks 
 at the Philadelphia Convention, where the members 
 were not afraid to speak their real minds, many of 
 them had by no means a very exalted opinion of most 
 of their fellow citizens. Such a feeling would have 
 great weight in keeping- them on practical ground, 
 and discouraging ideal institutions that depend on too 
 much virtue in mankind. This point has been well 
 put by Mr. Horace White. l ) The Constitution of 
 the United States is made of checks and balances. 
 Harmony of the different branches was not contem- 
 plated by its framers. It does not presume upon 
 good understanding. While providing that the majo- 
 rity shall prevail in the long run, it provides also for 
 ^v^the freest play of the passions and interests within 
 defined limits. It is based upon the philosophy of 
 ' Hobbes and the religion of Calvin. It assumes that 
 the natural State of mankind is a State of war, and 
 that the carnal mind is at enmity with God'". 
 
 Turning now to institutions that existed or had 
 existed in other countries and furnished suggestions 
 to the Fathers of the Constitution, the first question 
 that confronts us is what was the extent of their 
 
 ') Fortnightly Review Oct. 1879 p 516. 
 
- 55 
 
 knowledge of history and foreign politics. On the 
 whole the answer is decidedly favorable. Though to 
 the reader it seems at first as if the same old examples 
 are repeated again and again until they are more 
 than threadbare, the range is as wide as could have 
 been expected; ! ) the facts are accurate 2 ) and the 
 application good. This even holds true for the rati- (3 
 fying convention, as both parties had had time to get * 
 ready their artillery in advance. The last work on 
 Government was John Adams's book which came out^ 
 after the delegates had already assembled at Phila- . j 
 delphia, and which contained a classified description 
 of all republics from San Marino to the Phoenicians. 
 The Federalist often uses its examples with great 
 force, though at times a little captiously, laying much 
 stress on foreign precedent, or talking of the "dim 
 light of history as the occasion demands". Undoub- 
 tedly many gentlemen refreshed their studies at this 
 period, and many were in any case educated and well 
 informed men. Madison, long before he was sent to 
 Philadelphia, prepared himself on political questions fA&.c 
 taking advantage of Jefferson's stay in Paris to obtain p j(2 
 through him many works which might not otherwise (9 
 have been easily procurable. He was thus enabled 
 to draw up a very good sketch (of which the one 
 in Washington's possession was probably a copy) of 
 the chief confederacies ancient and modern, which 
 served him as an arsenal for many an argument at 
 
 ') There are few references to the Italian republics. 
 
 2 ) PATRICK HENRY was sometimes an exception to this rule. 
 
- S 6 - 
 
 Philadelphia and Richmond; and which he afterwards 
 ^summarized in the eighteenth number of the Federalist. 
 Even Washington fortified himself by reading Montes- 
 quieu. x ) 
 
 The result of these studies was chiefly negative 
 it was seen that none of the conlederacies known had 
 proved a permanent success, and that there was none 
 whose general features the Americans should copy. 
 
 -- On the contrary here were good models of what to 
 avoid, and particularly the feature that had characterized 
 them all, the action of the central authority on States 
 instead of individuals. In many ways the confede- 
 ration the Americans then lived under, though every 
 day a greater practical failure, in theory, seemed almost 
 the best yet known. 2 ) The literature of any impor- 
 tance about this form of Government, old as it was, 
 was most scant, consisting chiefly in a few passages of 
 Montesquieu. Puffendorf, among others, had denied 
 to confederacies a place as a legitimate species ; he 
 recognized only unified States and mere leagues ; and 
 termed the Holy Roman Empire a "monstrum". 
 
 T There was little that antiquity could offer as an 
 
 example to guide Americans except its leagues. It 
 
 J is conceivable, even if not very likely, that we have 
 ^ a clause in the constitution guaranteeing to every 
 state a republican form of Government because Phillip 
 overthrew the liberties of Greece after getting into the 
 
 1 ) BANCROFT'S Hist, of the Constitution I. 278. 
 
 2 ) For a comparison see KENT'S Commentaries page 214 and 
 HART'S introduction to the study of Federal Government. 
 
»- 57 - ^ 
 
 Amphictyonic Council, *) and Montesquieu . called M j>J 
 attention to this 2 ) and warned against having monar- \ /v l 
 chies in the same confederacy with Republics. Another 
 possibility is that the plan of having a National Capitol 
 under the exclusive jurisdiction of the United States, 
 which we already find in a resolution 3 ) passed in 
 1783, was first suggested by the example of Delphi 
 which derived all its importance from the fact that it 
 contained the famous temple and oracle, was the place 
 of celebration of the Pythian games, the seat of the 
 Amphyctionic Council, in short the Capitol of the 
 Greek race. The possible influence of the example 
 of the Lycian League as praised by Montesquieu has 
 already been adverted to. 
 
 The general feeling about the Holy Roman Em- |. JL* J 
 pire was expressed by Wilson during one of the . {{^©"f 
 debates on the formation of the Confederation. "The . • / - 
 Germanic body is a burlesque on Government and 
 their practice on any point is a sufficient authority 
 and proof that it is wrong". 4 ) I fail to see any 
 sufficient ground for Sir Henry Maine's belief that "it 
 seems probable that the framers of the constitution 
 of the United States . . . were guided to a conside- 
 rable extent" by the example of the Empire or why. 
 "The American Republican Electors are the German 
 Imperial Electors exept that they are chosen by the 
 
 *) See references in the ratifying debates and in the Federalist 
 : ') Livre IX. Chap. 2. 
 
 3 ) Journals of Congress on Curtis p. 154. 
 
 4 ) ELLIOT I. 78. 
 
- 58 -i 
 
 several States". *) Still the Holy Roman Empire wa 
 in Madison's and Washington's abstracts of confederacies 
 and was analysed in the Federalist. Though it i 
 perhaps not very likely that the Reichskammer-Gerich 
 suggested the idea of the Supreme Court of the Unite* 
 States, as it is described in the abstract, it probabb 
 was present in the minds of those who had read th< 
 paper; and we can say that in spite of all the diffe 
 rences in the character of the two tribunals, the Reichs 
 kammergericht was the nearest approach to a mode 
 that our federal courts had. 2 ) 
 
 The example of Poland was before all eyes am 
 made the members of the convention particularly anxiou 
 to find some means of electing the President that wouk 
 leave no room for foreign immixtion or intrigue. The 
 partisans of election by the people and those of eleo 
 tion by Congress each declared that the way recom 
 mended by the other side was like the Polish practice 
 and liable to the same dangers. :v ) The system o 
 Electors quieted both, but the same apprehension: 
 were undoubledly the chief reason for the clause pro 
 viding that the President must be born in America. 
 
 The union of the Swiss Cantons was so loose 
 that it was little referred to, although a historical 
 
 *) Popular Government p. 226. The rest of the page tryinj 
 to prove how the two institutions failed in the same way is evei 
 farther fetched. 
 
 On the Reichskammer-Gericht see BERY. Grundriss de: 
 Reichsgerichtlichen Verfassung (Gottinge 1797). 
 3 ) See ELLIOT. V. p. 322. 323. 364. 
 
— 59 — 
 
 debate on the subject look^ place in the Virginia Con- 
 vention. *) 
 
 The Republic of the United Netherlands offered 
 a much more fruitful subject for study. 2 ) It had began 
 with a Declaration of Independence, thereby setting an 
 example to America ; 3 ) and its constitution resembled 
 in many ways and served as a model to the articles 
 of Confederation. 4 j 
 
 The failure of the copy discredited the model 
 which was fast going to ruin on its own account. The 
 Americans seem to have followed the troubles in the 
 United Provinces with considerable interest ; and though 
 it was not until after the meeting in Philadelphia that 
 the King of Prussia marched his troops into the un- 
 fortunate little country, its weakness was plain to every 
 one some time before. Undeterred by this, the Anti 
 Federalists continued to admire the Dutch Republic 
 by turning their eyes from its wretched present to its 
 past glories. To the Federalists the History of the 
 Netherlands furnished very effective arguments against 
 a government that could coerce States only, and where 
 unanimity was required; and perhaps it helped to con- 
 
 1 ) ELLIOT HI 143. 189, 211. 205 etc. 
 
 2 ) See "La Forme du Gouvernement dans la Republique des 
 Provinces Unies" by the late Mr. E. de Lovelaye. (Revue des Deux 
 Mondes May 15. 1874.) 
 
 3 ) KENT'S Commentaries Book X p. 208. 
 
 4 ) The confederation ''formed in the Dutch Model where cir- 
 cumstances are entirely different" — GRAYSON printed in BAN- 
 CROFT'S History of the Constitution I 492. 
 
 See also I p. n of the same work. That this fact was recog- 
 nized in Europe is proved by TURGOT mentioning it in his letter to 
 Dr. PRICE. 
 
— 6o — 
 
 vince wavering minds of the necessity of a powerful 
 executive vested in one person. *) 
 
 It is a difficult task to attempt a separation of 
 English influence in the formation of the Constitution 
 into mediate and immediate. Where one member ol 
 the Convention would be thinking of some institution 
 in England, another would have in mind something 
 in his own state, a distinction not without much . im- 
 portance as showing the ideas of the founders of the 
 constitution ; for the condition of mind of a man copy' 
 ing a state senate is different from that of one whc 
 wishes to get as near as possible to the House o 
 Lords. The distinction becomes all the more impor 
 tant if we agree to the theory of Mr. W. C. Morey. 2 
 "The first point which I have tried to illustrate 
 in this rapid sketch of the Genesis of the America! 
 Colonial Constitutions is the fact that the original fram( 
 of Government which they established was, in nc 
 proper sense, patterned after the structural features o 
 the English Government; but that it was merely a re 
 production or continuation of the Government esta 
 blished by charter for the colonial trading companies 
 as seen in the East India Company and in the Londoi 
 Company under its third charter' and in th< 
 Massachusetts Bay Company". I shall not attemp 
 to enter into this question or to make an ex 
 
 l ) The Stadhouder thanks to his anomalous position could b 
 and was used as an argument both for and against a string execu 
 tive. ELLIOT IV. 146. 190, 225 etc. 
 
 '-') The Genesis of a written constitution in the Annals of th 
 Am. Academy of Political and Social Science. April 1891. p. 55< 
 
— 6i — 
 
 haustive study of what our constitution owed to the 
 Mother country and what to the States, but shall 
 merely point out a few provisions where the direct 
 English influence seems to me unmistakable. 
 
 If a very little reading of the debates of the Fe- 
 deral Convention shows that one more statement of 
 Sir Henry Maine is incorrect viz : — that the framers 
 of the Constitution "took the King of Great Britain, 
 went through his powers and restrained them when- 
 ever they appeared to be excessive or unsuited to the 
 circumstances of the United States," x ) a very little 
 reflection is necessary to convince one that it is an 
 error to look at the President as a sort of enlarged 
 governor of New- York, though this view might be use- 
 ful to oppose to those who saw in his office "the 
 foetus of monarchy". 2 ) It is best to distinguish be- 
 tween his position towards his fellow countrymen and 
 towards foreign nations, or as Locke would have put 
 it, between his Executive and his Federative power. 
 In the one his situation much resembles that of the 
 Governor of a state ; in the other, he is the represen- 
 tative, aided and controlled by the Senate, of the 
 sovereignty oi the American people. As this repre- 
 sentation he has the sole right of making treaties even 
 though they must be confirmed, anyinnovation that 
 was compromise between English and Roman practice. 
 
 The President must take an oath before entering 
 into his office. Here, whatever may be the rules that 
 
 l ) Popular Government p. 212. 
 
 3 ) E. RANDOLPH. ELLIOT V. p. 141. 
 
62 
 
 apply to different Governors, it is plain that what the 
 convention feared, was attempts at usurpation on the 
 part of the President ; and that this fear was due to 
 historical reasons and particularly to English history. l ) 
 Even the most rabid partisans of liberty could not be 
 afraid that a governor would try to make himself a king. 
 
 In the same way in the case of impeachment, 
 even if the method actually adopted is nearer that of 
 Massachusetts or New-York, the idea at the bottom of 
 the provision was impeachment by the Commons before 
 the Eords. 
 
 The power of pardoning all offences except im- 
 peachment, was a prerogative of the English Kings, 
 limited here by a jealousy of the President aiming at 
 royal power and protecting his tools. 
 
 Treason — The members of the Convention 
 "resorted to the great English statute of the 25 th 
 Edward hi. and from it they selected two of the 
 offences there defined as treason, which were alone 
 applicable to te United States." 2 ) 
 
 When the Convention met at Philadelphia, few, 
 if any, of the members, though they mostly were in 
 favor of two houses, had any idea of having one 
 represent the people and the other the States, The 
 prevailing wish was to have the upper house represent 
 property and the aristocratical principle in society. 
 There was no hesitation about expressing an admiration 
 
 1 ) Compare von HOLST. Verfassungsgeschichte der Ver- 
 einigten Staaten. I. p. 81. 
 
 2 ) CURTIS'S Constitutional History I. p. 561. 
 
£Ti 
 
 - 63 
 
 for the House of Lords, and even a desire of imitating 
 it as far as might be. Dickinson wished the Senate 
 to consist of the most distinguished characters, dis- r^v^\ 
 tinguished for their rank in life and their weight of 
 property and bearing as strong a likeness to the 
 British House of Lords as possible. l ) Gouverneur 
 Morris thought "the second branch ought to be com- 
 posed of men of great and established property-aristo- 
 cracy". 8 ) It was in contradistinction to this idea and 
 not to that of the representation of the States that 
 the vote for the lower branch was given directly to 
 popular choice. When, after a bitter fight, the small 
 States succeeded in obtaining an equal representation 
 in the Senate though its nature changed at once and 
 it became the embodiment of states rights, Still a certain- , 
 flavor of its former destination, of what we can call 
 the English idea still cling to it in the eyes of both- 
 friends and enemies; it was one reason why it 
 was endowed with so much power, such a long term 
 of office and generally conservative stamp. /This is also 
 the chief ground on which it was attacked outside. 
 There was another argument based on English history 
 for strengthening the Senate. In spite of the false 
 expressions used by the Constitutionalists/the Ameri- 
 cans knew that in Great Britain the House of Com- 
 mons had become much more powerful than both 
 the Crown and the Lords. Arguing from this prin- 
 ciple , which they assumed to be universal, of the 
 
 ') ELLIOT V. p. 163. 166. 
 9 ) ELLIOT I p. 475; V. 271. 
 
- 64 - 
 
 tendency of the popular branch to gain on the other 
 house l ) and the executive they were the more inclined 
 to fit out the two latter with sufficient powers of self 
 defense to preserve the sacred balance deemed neces- 
 sary to liberty and good government. 
 
 When, as a part of the great compromise between 
 the large and the small States, the exclusive right of 
 initiating money - bills was granted to the House of 
 Representatives, this privelege, whatever it might 
 be worth, was obviously of direct English origin and 
 its importance was weighed by the value of the more 
 extensive one of the House of Commons in Great 
 Britain, and not by its worth in such few States where 
 it happened to exist, without any particular raison 
 d'etre or giving particular satisfaction. 2 ) 
 
 The last half of Section 6 preventing any Con- 
 gressman from getting into any office created or more 
 richly 'remunerated while he was a legislator, or from 
 being a Congressman and an official at the same time 
 was intended to prevent such corruption as had existed 
 in Parliament throughout the century and of which 
 Walpole had been the most famous master. 3 ) 
 
 The old cry against standing armies which Boling 
 broke and others had kept up long after it ought to 
 have died out peaceably in England, was raised in 
 America with perhaps increased intensity and with 
 
 *) Federalist p. 444. 
 
 2 ) The delegates from S. CAROLINA declared it had worked 
 badly there. 
 
 3 ) See CURTIS'S Constitutional History I 470—474. 
 
- 65 - 
 
 still less reason. In deference to this and in obvious 
 imitation of the English practice of an annual mutiny 
 bill, the provision in the Constitution was inserted 
 that no maintenance of soldiers should be voted for 
 more than two years at a time. If at the present 
 day such a precaution seems to us superfluous we 
 must make allowances for the prejudices of the age. 
 It is very necessary not to lose sight of this in 
 judging the whole work of the convention. Amid 
 many true ideas we find not a few that now seem 
 to us false, expectations that have not been fulfilled 
 and fears that were groundless. And yet, this does 
 not detract from the merit of the remarkable men that 
 met together in Philadelphia in 1789, They builded 
 better than they knew, but they builded the best they 
 knew; and they have left a debt of gratitude behind 
 which no American should ever forget. 
 
 Archibald Cary Coolidge. 
 

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