the priceless treasure of the English common law, each in all the details of administration inheriting English forms, traditions, and nomenclature.

The President the English King of the eighteenth century.

As regards the Federal Constitution, the following of English precedents is just as apparent as in the case of the forms of local self-government. When the Federal Constitution was formulated and sent out to the States to be ratified, the exasperation against England was extreme, and the friends of the measure in recommending it were as reticent as possible as to their obligation to the mother-country. The papers of the "Federalist," for instance, are marked by this reticence. With only one or two exceptions, however, the features of the federal scheme are distinctly English.1 The resemblance of the President to the British King of the end of the eighteenth century is obvious. Each possesses the executive power, commands the army and navy, makes treaties, appoints ambassadors and judges, all with the advice and consent of the Upper House of the legislature; each has a qualified veto on legislation, and the power of convening the legislature in extra session. It is probable that the constitution-makers constructed their chief magistrate simply by reviewing the powers of the King and modifying them where they appeared excessive or unsuitable. At an earlier and at a later time, the British Sovereign was something very different; but the only essential distinctions between the powers of the Presidency and of the Kingship, as it was under George III, are that the Presidency is not hereditary, and can be held

1 Sir Henry Maine: Popular Government, p. 211, etc.

At

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(without re-election) for only a short term. present, the President has much more power than the English Sovereign; much more, too, than was possessed by the first Hanoverians; much less than was possessed by the Tudors; than was claimed, though unsuccessfully, by the Stuarts. As to the method of electing the President, we have the most important departure from English precedents which the Federal Constitution-makers allowed themselves. In the old day when Anglo-Saxon freedom remained unimpaired, the King was elected by the people in the great folk-moot, and in a later time by the witan, in the presence and with the consent of the people, whose acclamations, as we have seen, were craved at coronations, during many centuries, as an essential part of the ceremony: in America, however, a selected body was provided for, the Electoral College, which, though itself proceeding from the people, was to take the election out of the hands of the people, that the choice might be made by a small circle especially enlightened. This feature of the Constitution was borrowed from the Holy Roman Empire, in which a small body of Kurfürsten met to determine upon the supreme magistrate. The Electoral College is the most conspicuous failure of the Constitution. The precedent upon which it was based was also a failure. Both in Germany and America, the failure proceeded from the same cause: the electors fell, in Germany, under the control of the dominant factions of the French or Austrian party,—as in America, they fall under the control of the Republican or Democratic party.

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As to the legislature, the bi-cameral feature. the two Houses, bears the plain mark of a British original. In old France, there were three bodies; so in Spain. In Sweden, there Hos of Rep were four estates. The House of Representatives is unquestionably a reproduction of the British House of Commons of one hundred years ago, though the two bodies exhibit at present in some points a wide divergence. Each is constituted of members elected by a popular franchise ; each has the power of originating all money-bills; a century ago, the House of Commons, like the House of Representatives, was restricted to legislative functions, and had no voice in the appointment of the Cabinet. The present far-reaching and constant interference with the executive through the interrogation of ministers, is a recent acquisition of power; while the right of the Commons to designate Cabinet ministers, at present thoroughly established, was successfully disputed by George III. The of Lords and analogy between the Upper Houses of the English and American Legislatures is much less marked than in the case of the Lower Houses. The complete absence in America of a class of nobles, compelled the Constitution-makers to look elsewhere for the means of forming an Upper Chamber. Following at last the suggestion of Connecticut, they hit upon the happy expedient of making the Upper House "reflect the original political equality of the several states." Without regard to amount of territory, wealth, or population, it was ordained that each State should send two members to

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* Maine: Popular Government, p. 229.

the Senate. The adoption of this provision in 1787, not only made possible the acceptance of the Constitution, but has proved since one of the best strokes in the memorable work that was then done. While in a general way acting like the House of Lords, to restrain and supplement the work of the Lower House, the Senate has executive functions, also, which, as time has passed, have developed into greater importance. From the outset it has possessed such a dignity of character, and its action has been attended in every stage of our history with consequences so salutary, that it must be regarded as one of the most fortunate creations of the Fathers.

The Supreme Court, finally, which in the Federal Constitution represents the judicial function, as the President represents the executive, and Precedents Congress the legislative, has been held by for the SuDe Tocqueville and other writers to be preme Court. a brilliant American invention. Sir Henry Maine regards it as something unique,1 but finds in its make-up and in its forms of procedure, marks of English originals. Bryce goes still farther, claiming that it is throughout based on English precedents. The British judges, irremovable except by impeachment, are its model. It can act only indirectly, in special cases in which the United States, States, and individuals are parties; a declaration of unconstitutionality not provoked by a definite dispute is unknown to the Supreme Court. "Much that is really English appears to De Tocqueville to be American or democratic. The function of the judges, for instance, in expounding the Constitution and dis1 Maine: Popular Government, p. 217, etc.

regarding a statute which conflicts therewith,

"Esprit des

...

is a mere instance of a general doctrine of English law adapted to states partially subordinate to a federal government." 1 No authority weighed so much with the Constitution-makers of 1787 as Montesquieu, as appears from the frequency and the Influence of reverence with which the "Esprit des Montesquieu's Lois" is cited in the "Federalist." Special Lois." weight is given to his assertion of the essential separation in a proper polity, of the legislative, judicial, and executive powers. The distinction has become now a commonplace of politics, but it was recognized only slowly. The different nature of the legislative and executive functions was not appreciated until the fourteenth century; and that the judicial stood apart from both was a discovery of the eighteenth. "There is no liberty," declared Montesquieu, "if the judicial power be not separated from the legislative and executive"; and in this declaration we find the source, no doubt, of the Federal judicature in the Federal Constitution.2 Neither the Supreme Court, nor in fact the Federal Constitution in general, would have been likely to come about had not the "Esprit des Lois" been written. But the great French thinker was led to his views while contrasting admiringly the institutions of England with those of his native land; and

1 Bryce: Johns Hopkins University Studies, 5th Series, IX, p. 26. 2 Maine: Popular Government, p. 220.

3 In the English constitution, as now developed, the legislative, executive, and judicial functions are by no means separated as Montesquieu conceived they were in his day. "The efficient secret of the English constitution is the close union, the nearly complete fusion, of the executive and legislative powers. The connecting link is the Cabinet." -Bagehot: English Constitution, pp. 2 and 10.