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Influence of

“Esprit des Lois."

regarding a statute which conflicts therewith, . 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

reverence with which the “Esprit des Montesquieu's Lois” is cited in the “Federalist.”. Special

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. 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 ; 3 and

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.” - Bagebot: English Constitution, pp. 2 and 10.

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in adopting his thought, the founders of America had ready to their hands English constructions which needed only to be transferred.

The Constitution of the United States, then, is by no means a new political departure, but merely a modified version of what stood in England between 1760 and 1787. Circumstances excluded an hereditary King and nobility, and the variations to be noted are chiefly due to this exclusion. As in the local government of town, parish, county, and State, almost no change is made, the citizen administering forms into which he was born and for the working of which he has an hereditary aptitude handed down through many centuries; so as regards the Federal instrument, nearly all is old. The stability of America is, no doubt, owing to the great portion of England which is thus embedded in it, though the sagacity must be admired with which the founders filled up the interstices left by the inapplicability of certain of the then existing English institutions, to the emancipated colonies. What was excluded, in fact, was that in the English polity which made against the Anglo-Saxon freedom, the absolutism and privilege which had come to pass in later times because the powerful were determined to encroach, and the people were negligent in maintaining their birthright. When all was done, and the great growing nation had had time to accommodate itself to its political garment, it was found that it was government of, by, and for the people which had been provided for. Though nothing important, either in State or Federal Constitution

1 Maine: Popular Government, p. 253.

Sir Henry Maine's admi. ration of the Federal Con. stitution,

was new or un-English, something important had been sloughed off. Moreover, it is an innovation that there must be for State and for Union, the Constitution, the rigid, carefully formulated instrument by which legislature, executive, and judiciary are to be carefully bound ; not to be amended but by a process of some difficulty, - in the case of the Federal instru

ment so difficult as to be seldom practicable. It has

acted for America, says Sir Henry Maine, " like the dikes and dams which strike the eye of the traveller along the Rhine, con

trolling the course of a river which begins amid mountain torrents, turning it into one of the most equable waterways in the world." It was this restored Anglo-Saxon freedom, so similar to that of the plains of the Weser and Elbe two thousand years ago, in all its main outlines, however its adaptation to a higher civilization and a vastly larger nation may have caused development, — sovereignty of the plain people, safeguarded and carefully ordered as long experience advised, which one hundred years ago, April 30, 1789, Washington, as Chief Magistrate, made oath to administer.

i Popular Government, p. 245.



OF 1832.

George IV, 1820.

William IV, 1830.

Victoria, 1837.




With the loss of the thirteen American colonies, the greatness of England seemed quite destroyed. Far-seeing statesmen of her rival, France, French anticihad sought comfort at the time when Que- Pation of Engbec fell before Wolfe, in the anticipation the American that the colonies, freed now from fear of a hostile power always ready to descend upon them from Canada, no longer needing protection, would soon throw off the dependence by which protection had been accompanied. The anticipation was well based: the spirit of independence at once appeared, as Choiseul, Argenson, Kalm, and other foreign observers had believed it would. France fanned the discontent; when the disputants came to blows, she gladly lent America money and men; when at Yorktown the British army surrendered and American independence became certain, France thought her revenge complete, and saw nothing in the future but her own undisputed supremacy in the civilized world.

The ill-wishers of England saw far, but not far enough. The independence of America crippled the island kingdom for a moment only: at the How they same time it established the supremacy in trated.


Contrast be.

tutionin America and elsewhere.


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 centween con el tury. A most significant contrast is to be

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


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

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