in the formula le roy le veut, by which the king expresses his assent to the legislation of Parliament, a perfunctory act. For since the days of Queen Anne, no monarch has ventured to use even the gentle formula which indicated the royal veto - le roy s'avisera.

The history of the regaining by the people of their power to legislate, almost forgotten in the middle centuries, is now, by the effort of German and English scholars, well known. We owe it, like our own Revolution, to unconstitutional taxation. No Englishman was bound to pay taxes but under a general law passed by his representatives in the Great Council and for the general good of the whole people; no arbitrary exaction, aid, impost, or levy by the Crown or its officers was tolerated. This fundamental principle, expressed with the greatest distinctness in John's Charter, was intentionally omitted by Henry III in his, sixteen months later (the usual one printed in the statutes), and only restored in 1297 by Edward I when the needs of the war in Flanders compelled this concession. But the principle was never lost sight of, and there never has been a period in the history of England when the people permitted any taxation for a considerable length of time in contravention thereof; and from the very beginning they used this principle to extort legislation restoring their own law; that is to say, decrees or statutes of the king recognizing the common law of England "as it was in the time of Edward the Confessor." For three or four centuries after the Conquest there was no new legislation, in the modern sense; only the old laws restored. The Commons, with that practical good sense which characterizes the English people, caring not for the form provided they got the substance, when asked for grants of money would put the matters they desired to be recognized as part of the law of England into a petition, which would be the foundation of a statute; then, in theory, made by the king, but practically dictated by the Parliament. Thus, gradually, all the customs of England, with the common law of the Saxon kingdoms, was recognized as the law. Finally the form of petition and decree (which still exists in the machinery of legislation in many of our State Legislatures) was dropped, the House of Commons finding that the law did not always emerge from the king's law officers as they had drawn it in their petition; and the statutes were drawn in Parliament as well as enacted there, and only sent to the king when in the form of complete Acts for his signature. Thus the power of the purse, the taxation power, residing only in the House of Commons, drew back to it the power to legislate and the English

view of the law, -as customs, grown, not made, based on natural justice, common usage, and the liberties of the people; laws not newly ordered, but the result of evolution and experience. Hence their wisdom and their strength. It is hard to fix precisely the first date at which anything like constructive legislation, as to ordinary matters concerning the people, first appears in England. For two centuries the statutes of the realm are concerned with matters of taxation, with recognizing or re-establishing the common law, and with political matters, defining the powers of the Crown and excluding the control of the Roman Church and of the Roman law over secular matters. The Statute of Merton, it is true, in 1235 has a word about usury and about the legitimacy of children; but in both cases it is merely to enforce the Common Law of England instead of the Civil Law of the Church. For a century more they concern merely what we should now call procedure, or the penalties for the infraction of laws already existing, feudal tenures, and the effort to fix the prices of bread and other necessities which was extended in 1349 to the wages of labor. The first constructive legislation that we do find is concerned with those same questions that most concern us to-day, -the regulation of charges, and the prevention of the cornering of markets or the making of artificial prices by individuals or by combinations. The price of bread, and ale and tolls of mills were regulated by the Assize in 1266; and in 1275 the Statute of Westminster I forbids "excessive toll contrary to the common custom of the Realm in market towns." Notice that it is still "the common custom of the realm" that toll should be reasonable, it is not a new law; and in 1285, ten years later, appears the statute against forestalling or engrossing; that is to say, monopolizing the market, a common complaint against the modern trust. In 1691 the rates of carriers are fixed.

When we come to the American Constitution, though now all expressed for the first time in one document, its principles must, so far as they express the English Constitution, be regarded as a continuation, not as a new enactment, and must be taken with all the historical meaning and import with which they were viewed in the minds of our ancestors, far more familiar with historical law, with constitutional history, than we Americans have had to be since. It was at first believed by our greatest judges and jurists that the whole English Constitution was implied in the Federal Constitution; that there is, as it were, an unwritten Constitution which we inherited in America

and which consisted, not only of the English Constitution where not expressly altered by our own, but of all matters of natural right and justice. Doubtless this is the intended meaning of the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Such is not, perhaps, the modern view; but the question has become, in fact, academic, for the reason that in 120 years of interpretation our Supreme Court has ever found some clause in the Federal Constitution into which to read any English constitutional principle not therein expressly altered.

But while we must insist that the American Constitution is not an instrument or a code of rules created for the first time by a body of gentlemen however wise, and therefore subject to the errors of an ordinary new-made document, we must hasten to accentuate the point that it is a different Constitution, the Constitution of another country; while it embodies all the liberty principles of the English Constitution, what we may call all its human or social side, yet also it creates an entirely new frame of government, and it invents two or three great new principles, - principles as profoundly important as those of Magna Carta, principles now recognized throughout the world as America's great contributions to the science of government. First of all these we should put that invention, be it Franklin's or Pelatiah Webster's, by which a centralized national government is given all the political power necessary for the protection of the whole country and the conduct of foreign relations, while the States are carefully preserved to secure to the people their own laws and governments and courts at home, the marvellous dual system whereby power, in so vast a country, is made compatible with liberty. Second, the great principle of the separation of the powers, suggested, indeed, to Montesquieu and others by the practical working of things in England, but never formally embodied in the Constitution of any country, not even to-day, except our own; that principle that they who make the laws may not administer them, and he who administers them may not judge them, "to the end it be a government of Laws and not of Men." Third, most novel, perhaps, and still but half understood, the first great attempt of democracy to found a nation without entrusting the sovereign power away from itself, or in the hands of any one branch of government. This, to me, is the most wonderful political occurrence in modern history; that See Chapters VIII, X, below.

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the people, having (for eleven years from 1776 to 1787) for the first time in the history of the world gained all the reins of power, should, voluntarily and of their own high intelligence and patriotism, have put certain things beyond the power of their own Congress, of their own Legislatures, of the very government they were about to create.1 Theirs was the high experiment, to found a nation that should forever be without Imperial power; wherein the Bill of Rights, the cardinal principles, should be kept from the hands of sovereignty itself, and all the powers of autocratic nations, of continental empires and kingdoms, should be given neither to Congress nor to President, but sleep in the lap of the people until they woke to further need.

Lastly, with us the people are sovereign; not, as in England, the Parliament; nor, as in continental countries, the king; and this led, logically and necessarily, to the invention and the function of our Supreme Court. In all other countries, either there is one sovereign, or there are branches of the government co-ordinate and of equal dignity; and it would be presumptuous for the judicial branch to question the acts of either other. But in England we had the history of the judgments by the courts, of the king's own acts, or those of his officers under his orders. "What power the king hath, he hath but by law." This English heritage, joined with the logic of our Constitution, led to the creation of our great tribunal. When a people has granted to its government only certain powers, it may not trust to the wisdom of that government to judge of its own oversteps. When it has parcelled out those powers between Congress and Executive, between Federal government and State, neither branch, neither forum, may safely be entrusted to determine its own power or to limit its own realm. Therefore the people said, This Constitution we establish for the government of our country; it shall stand until we, the people, by amendment alter it; and beside the Executive and the Congress we place our Supreme Court, which shall judge matters arising between States or citizens of different States, or which involve any principles of this our Constitution; and the judges of that Court. shall be bound by this Constitution and its provisions as against any

"Though this Government pos- power of both, as delegated, embraces sesses sovereign power, it does not the whole range of what might be possess all sovereign power; and so the State governments, though sovereign in some respects, are not so in all. Nor could it be shown that the

called sovereign power.” James B. Thayer, "Legal Essays," p. 203, quoting Daniel Webster, in Luther v. Borden, 7 How. 1.

State or power, civil, executive, or military, and as against the acts of their own representative assembly.

This is the great difference, the great distinction of our Constitution. It is a commonplace to say that there is nothing like it in England, nor indeed elsewhere in the world. No other country has dared as yet to grasp the idea that the people may have a guardian above the laws made by their representatives. Many countries have written Constitutions, but in none can a statute be declared void by the courts.

And there is another important practical difference between the English Constitution and our own. Theirs in the main is composed of limitations upon the Executive. Ours limits (what is to-day far more important) the legislative assemblies as well. In theory still, the English Constitution is a pact between the King and Parliament, which is sovereign and brooks no constitutional control. Ours is the written will of the people, who are with us sovereign, addressed to their servants, the three branches of government, and defining and delimitating their powers among themselves. Both constitutions embody the frame of government; but in this the English is much simpler, for it provides but for the supremacy of Parliament, the power of the Commons in money matters, and the limitations imposed upon the king. Even the Cabinet, that committee of the House of Commons which now rules the nation, is not mentioned in the English Constitution. But it was necessary for our Constitution, besides setting up the frame of government, and that more complicated and explicit, as befits a Republic, also to set forth, in words so exact as to be undoubted, both the powers and the prohibitions given to Congress and the division of power between the Federal government and the States.

Most important in our Constitution to-day is that portion which is not the frame of government, but the liberties of the people; the part most neglected by historians and in treatises upon constitutional law. In this great domain the English and American Constitutions are practically identical; only that the American Constitutions, Federal and State, express in many words what the English Constitution puts in a very few, while of course the English restraint upon Parliament, though equally (some think more) effective, is a moral one. The growth of words in which these cardinal principles are swathed is curiously shown in Book II of this work. Besides we have, in our Federal Constitution, not only to secure these liberties to the indi