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, 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 dis

1 Maine: Popular Government, p. 217, etc.

regarding a statute which conflicts therewith,

Influence of

"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 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; 3 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.

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.1 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 admiration of the Federal Constitution.

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 instrument 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, controlling 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.

1 Popular Government, p. 245.

French anticipation of Eng

land's ruin at the close of

WITH the loss of the thirteen American colonies, the greatness of England seemed quite destroyed. Far-seeing statesmen of her rival, France, had sought comfort at the time when Quebec fell before Wolfe, in the anticipation the American that the colonies, freed now from fear of Revolution. 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.

were frus