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The written

ure of the American

WHEN the war of the American Revolution had been brought to a successful issue, and the Thirteen

Colonies stood independent, as United Constitution a unique feat

States, the momentous question at once

was presented, What shall be the form of polity.

the new nation? The adoption of the Federal Constitution was the next step taken. The only unique feature of the American polity, as the new nation took shape, was the provision as regards each separate State and as regards the United States, for a carefully formulated instrument, to be drawn up by an assembly of representatives of the people distinct from the legislative assembly, - an instrument to be interpreted by a Supreme Court especially empowered for that purpose, — an instrument, by

, which the whole work of law-making shall be imperatively controlled. No such controlling instrument In England,

has guided the development of Great

Britain, or of any other land. De Tocquecompletely

ville declared that in Great Britain the constitution can change without cessation, or rather it does not exist. The English law-makers are completely unfettered. English writers, such as Black



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stone, and his ablest commentator Christian, 1 make similar statements. In a former time, indeed, one may find in law-writers the idea that there are fundamental principles superior to Kings and Parliaments; but the modern doctrine is that of the absolute supremacy of Parliament. Jeremy Bentham proclaimed that nothing was superior to legislation, and that is the theory of to-day. The “Written, or as Mr. Bryce calls it, the “Rigid,” Constitution, as part of the polity of a people, appears for the first time in America. It is the most distinctive feature of our system, and, moreover, that probably which has the most value.

“We have not yet,” says Dr. W. G. Hammond, “fully learned the vast importance and momentous consequences of the new element that has been introduced into the science of govern- the written ment by

the recognition of two distinct and unequal grades of law (even though both derive their authority from the same supreme power, the people), one of which always controls and limits the other, and cannot be changed or limited by it or by any other of the ordinary processes of legislation; and consequent upon this the securing of the fundamental maxims of the government and its main features, against attacks of the persons in authority, while they are yet endowed with the powers necessary for the conduct of affairs.”2 The Fathers put

2 as many obstacles as they could contrive, as Lowell phrases it, “not in the way of the people's will, but of their whim"; above all is the Rigid Constitution, a bridle upon popular whim. By this the people

1 Commentaries, I, p. 91. 2 Western Jurist, April, 1869, p. 65, etc.




have shorn themselves of a measure of their power, making themselves safe from themselves, and thus is imparted to the government the highest practicable and desirable stability.

Although in its developed form the idea of a Rigid Constitution does not appear until the establishment History of the of America, the beginnings of the notion

must be sought for earlier. A germ of the idea may possibly be found in Magna Charta; still another, in the charters by which the guilds of the Middle Ages were constituted. Each corporation found its grant of privileges accompanied by a code of obligations, to which it was forced to conform under penalty of losing those privileges. The English settlement of America was made by great trading corporations, the charters of which, originally nothing more than grants to mercantile companies, made in true mediæval fashion, when “perverted” into instruments of government, stood behind the colonial assemblies, like the constitutions behind the legislatures, State and Federal, of the American Union.

It is, however, in the idea of an American Constitution that it shall come from the people themselves,

who are to be bound by it. In the case of from the peo- the charters mentioned, some outside au

thority, King, or over-lord of lower rank, imposes the limitation. Whence comes this noble element of self-restriction? In the Social Compact on board the “Mayflower"; the agreement of the Rhode Island settlers in 1637; and of the Connecticut towns, Hartford, Wethersfield, and Windsor, a year or two later, the freemen bind themselves. In the time of

It must come

ple them selves.

1 Brooks Adams : Atlantic Monthly, November, 1884.


the English Commonwealth, Vane in the “ Healing Question,” in 1656, clearly outlines what has become the American form of a constitutional convention, and urges Cromwell to call one for the settlement of the “fundamentals," instead of pursuing an arbitrary

Cromwell took no notice of Vane's suggestion; though the idea was in the minds of men, no great people undertook to put it in practice until after another century had passed. When at the throwing off of the royal dominion, the charters under which the Thirteen Colonies had existed lost authority, the people in the several States made provision for the new order of things, continuing generally the old charters with little change, as the most convenient scheme that could be devised. When, therefore, in 1787, the fathers gathered in convention at Philadelphia for their memorable work, sent by the will of the people, the proceeding was not without precedent, though the scale on which the experiment was to be made was larger than ever before.

Though the idea of formulating for a new State a Rigid Constitution by means of a convention of popular delegates was something novel, there was, as regards the Constitution tion of Eng. itself,1 when it at last appeared, singularly Convention of little that was original. “The Fathers, " says Bryce,2 “had neither the rashness nor the capacity necessary for constructing a constitution a priori : there is wonderfully little genuine inventiveness in the world, least of all in the field of political institutions. They followed methods which experi

Careful reten.

lish forms by


1 A summary of the Federal Constitution is given in Appendix D. 2 American Commonwealth, Vol. I, p. 31, American ed.

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ence had tested, — their own colonial governments, of late transformed into State governments.” These had a general resemblance to the British constitution, and in so far, it may with truth be said that the British constitution became the model for the new national government. The claim made by Sir Henry Maine 1 is not at all extravagant, that the Constitution of the United States is colored throughout by ideas of British origin; is, in fact, a version of the British constitution as it must have presented itself to an

observer in the second half of the last centution-makers tury. A most significant contrast is to be

Contrast be.

in America and else. where.

noticed between the work of the constitu

tion-makers of the incipient United States, and that of the constitution-makers of other countries, both in Europe and America, which within a hundred years have undertaken a reconstruction of their respective governments. In the case of the latter, the re-shaping has generally been done in a temper of bitter dissatisfaction with the old institutions, and with an earnest determination to build anew from the foundation, cutting loose completely from the past. So it has been in Mexico and the South American Republics, founded upon the ancient dependencies of Spain; so it has been in the case of Spain herself; so, to a most marked degree, it has been in the case of France. In the United States, however, the people at the outset were more than satisfied with the bulk of their institutions, and adopted them without change, for the new order. “ All sorts of old English institutions,” says Bryce, “ have been transferred bodily, and sometimes look as odd in the midst of their new sur

1 Popular Government, Essay IV, Constitution of the United States.

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