probably have pronounced against the Constitution.1 But this modern method of taking the popular verdict had not been invented. The question was referred to conventions in the several States. The conventions were composed of able men, who listened to weighty arguments, and were themselves influenced by the authority of their leaders. The judgment of the wise prevailed over the prepossessions of the multitude. Yet this judgment would hardly have prevailed but for a cause which is apt to be now overlooked. This was the dread of foreign powers.2 The United States had at that time two European monarchies, Spain and England, as its neighbours on the American continent. France had lately held territories to the north of them in Canada, and to the south and west of them in Louisiana. She had been their ally against England, she became in a few years again the owner of territories west of the Mississippi. The fear of foreign interference, the sense of weakness, both at sea and on land, against the military monarchies of Europe, was constantly before the mind of American statesmen, and made them anxious to secure at all hazards a national government capable of raising an army and navy, and of speaking with authority on behalf of the new republic. It is remarkable that the danger of European aggression or complications was far more felt in the United States from 1783 down till about 1820, than it has been during the last half century when steam has brought Europe five times nearer than it then was.

3

Several of the conventions which ratified the Constitution accompanied their acceptance with an earnest recommendation of various amendments to it, amendments designed to meet the fears of those who thought that it encroached too far upon the liberties of the people. Some of these were adopted, immediately

1 Especially if the question had been voted on everywhere upon the same day. The later decisions in doubtful States were influenced by the approval which other States had already given.

2 The other chief cause was the economic distress and injury to trade consequent on the disorganized condition of several States. See the observations of Mr. Wilson in the Pennsylvania Convention (Elliot's Debates, ii. 524). He shows that the case was one of necessity, and winds up with the remark, "The argument of necessity is the patriot's defence as well as the tyrant's plea.'

3 The vast territory then called Louisiana was transferred by France to Spain in 1762, but Spanish government was not established there till 1789. It was ceded by Spain to France in 1800, and purchased by the United States from Napoleon in 1803. Spain held Florida from its discovery till 1819, when she sold it to the United States.

after the original instrument had come into force, by the method it prescribes, viz. a two-thirds majority in Congress and a majority in three-fourths of the States. They are the amendments of 1791, ten in number, and they constitute what the Americans, following a venerable English precedent, call a Bill or Declaration of Rights.

The Constitution of 17891 deserves the veneration with which the Americans have been accustomed to regard it. It is true that many criticisms have been passed upon its arrangement, upon its omissions, upon the artificial character of some of the institutions it creates. Recognising slavery as an institution existing in some States, and not expressly negativing the right of a State to withdraw from the Union, it has been charged with having contained the germ of civil war, though that germ took seventy years to come to maturity. And whatever success it has attained must be in large measure ascribed to the political genius, ripened by long experience, of the Anglo-American race, by whom it has been worked, and who might have managed to work even a worse drawn instrument. Yet, after all deductions, it ranks above every other written constitution for the intrinsic excellence of its scheme, its adaptation to the circumstances of the people, the simplicity, brevity, and precision of its language, its judicious mixture of definiteness in principle with elasticity in details. One is therefore induced to ask, before proceeding to examine it, to what causes, over and above the capacity of its authors, and the patient toil they bestowed upon it, these merits are due, or in other words, what were the materials at the command of the Philadelphia Convention for the achievement of so great an enterprise as the creation of a nation by means of an instrument of government. The American

1 It is hard to say whether one ought to call the Constitution after the year 1787, when it was drafted, or the year 1788, when it was accepted by the requisite number of States, or the year 1789, when it took full effect, the Congress of the Confederation having fixed the first Wednesday in March in that year as the day when it should come into force. The year 1789 has the advantage of being easily remembered, because it coincides with the beginning of the great revolutionary movements of modern Europe. The Confederation may be taken to have expired with the expiry of its Congress, and its Congress died for want of a quorum.

2 The literary Bostonians laid hold at once of its style as proper for admiration. Mr. Ames said in the Massachusetts Convention of 1788, "Considered merely as a literary performance, the Constitution is an honour to our country. Legislators have at length condescended to speak the language of philosophy."— Elliot's Debates, ii. 55.

Constitution is no exception to the rule that everything which has power to win the obedience and respect of men must have its roots deep in the past, and that the more slowly every institution has grown, so much the more enduring is it likely to prove. There is little in that Constitution that is absolutely new. There is much that is as old as Magna Charta.

The men of the Convention had the experience of the English Constitution. That Constitution, very different then from what it is now, was even then not quite what they thought it. Their view was tinged not only by recollections of the influence exercised by King George the Third, an influence due to transitory causes, but which made them overrate its monarchical element,1 but also by the presentation of it which they found in the work of Mr. Justice Blackstone. He, as was natural in a lawyer and a man of letters, described rather its theory than its practice, and its theory was many years behind its practice. The powers and functions of the cabinet, the overmastering force of the House of Commons, the intimate connection between legislation and administration, these which are to us now the main characteristics of the English Constitution were still far from fully developed. But in other points of fundamental importance they appreciated and turned to excellent account its spirit and methods.

They had for their oracle of political philosophy the treatise of Montesquieu on the Spirit of Laws, which, published anonymously at Geneva forty years before, had won its way to an immense authority on both sides of the ocean.2 Montesquieu, contrasting the private as well as public liberties of Englishmen with the despotism of Continental Europe, had taken the Constitution of England as his model system, and had ascribed its merits to the division of legislative, executive, and judicial functions which he discovered in it, and to the system of checks and balances whereby its equilibrium seemed to be preserved. No general principle of politics laid such hold on the constitution

1 There is always a tendency in colonists (perceptible even now in the works of such a writer as the Canadian publicist, Mr. Todd) to over-estimate the importance of the Crown, whose conspicuous position as the authority common to the whole empire makes it an object of special interest and respect to persons living at a distance. It touches their imagination, whereas assemblies excite their criticism.

2 Montesquieu is repeatedly quoted by the speakers in the various State conventions, whose discussions have come down to us. See post, Chapter XXV.

makers and statesmen of America as the dogma that the separation of these three functions is essential to freedom. It had already been made the groundwork of several State constitutions. It is always reappearing in their writings: it was never absent from their thoughts. Of the supposed influence of other continental authors, such as Rousseau, or even of English thinkers such as Burke, there are few direct traces in the Federal Constitution or in the classical contemporaneous commentary on and defence of it which we owe to the genius of Hamilton and his hardly less famous coadjutors, Madison and Jay. But we need only turn to the Declaration of Independence and the original constitutions of the States, particularly the Massachusetts Constitution of 1780, to perceive that abstract theories regarding human rights had laid firm hold on the national mind. Such theories naturally expanded with the practice of republican government. But the influence of France and her philosophers belongs chiefly to the years succeeding 1789, when Jefferson, who was fortunately absent in Paris during the Constitutional Convention, headed the democratic propaganda.

Further, they had the experience of their colonial and State governments, and especially, for this was freshest and most in point, the experience of the working of the State Constitutions, framed at or since the date when the colonies threw off their English allegiance. Many of the Philadelphia delegates had joined in preparing these instruments: all had been able to watch and test their operation. They compared notes as to the merits, tested by practice, of the devices which their States had respectively adopted. They had the inestimable advantage of knowing written or rigid constitutions in the concrete; that is to say, of comprehending how a system of government actually moves and plays under the control of a mass of statutory provisions defining and limiting the powers of its several organs. called Constitution of England consists largely of customs, precedents, traditions, understandings, often vague and always flexible. It was quite a different thing, and for the purpose of making a

The so

1 The Federalist, a series of papers published in the New York newspapers in advocacy of the Federal Constitution when the question of accepting it was coming before the New York State Convention.

There are frequent references in the Federalist to the State Constitutions (see especially Letters xlvii. and xvliii.), and the record of the debates in the Convention shows that many of the proposals made were directly drawn from these Constitutions.

constitution for the American nation an even more important thing, to have lived under and learnt to work systems determined by the hard and fast lines of a single document having the full force of law, for this experience taught them how much might safely be included in such a document and how far room must be left under it for unpredictable emergencies and unavoidable development.1

Lastly, they had one principle of the English common law whose importance deserves special mention, the principle that an act done by any official person or law-making body in excess of his or its legal competence is simply void. Here lay the key to the difficulties which the establishment of a variety of authorities not subordinate to one another, but each supreme in its own defined sphere, necessarily involved. The application of this principle made it possible not only to create a national government which should leave free scope for the working of the State governments, but also so to divide the powers of the national government among various persons and bodies as that none should absorb or overbear the others. By what machinery these objects were attained will sufficiently appear when we come to consider the effect of a written or rigid constitution embodying a fundamental law, and the functions of the judiciary in expounding and applying such a law.2

1 The novelty of written constitutions is dwelt upon with great force by James Wilson in the Pennsylvania Convention.-Elliot's Debates, vol. ii.

2 See post, Chapters XXIII. and XXXIII.