CHAPTER VII. WRITTEN CONSTITUTIONS. In the American a power above the legislature. TOWARD the close of the preceding chapter 1 I spoke of three points especially characteristic of the American state, and I went on to mention two of them. The third point which I had in mind is so remarkable and important as to require a chapter all to itself. In the American state the legislature is not supreme, but has limits to its authority prescribed by a written document, known as the Constitution; and if the legislature happens to pass a law which violates the constitution, then whenever a specific case happens to arise in which this statute is involved, it can be brought before the courts, and the decision of the court, if adverse to the statute, annuls it and renders it of no effect. The importance of this feature of civil government in the United States can hardly be overrated. It marks a momentous advance in civilization, and it is especially interesting as being peculiarly American. Almost everything else in our fundamental institutions was brought by our forefathers in a more or less highly developed condition from England; but the development of the written constitution, with the consequent relation of the courts to the law-making power, has gone on entirely upon American soil. 1 See above, p. 172. idea of a written constitution. The germs of the written constitution existed a great while ago. Perhaps it would not be easy to say just when they began to exist. It was formerly supposed by such profound thinkers as Locke and such Germs of the persuasive writers as Rousseau, that when the first men came together to live in civil society, they made a sort of contract with one another as to what laws they would have, what beliefs they would entertain, what customs they would sanction, and so forth. This theory of the Social Contract was once famous, and exerted a notable influence on political history, and it is still interesting in the same way that spinning-wheels and wooden frigates and powdered wigs are interesting; but we now know that men lived in civil society, with complicated laws and customs and creeds, for many thousand years before the notion had ever entered anybody's head that things could be regulated by contract. That notion we owe chiefly to the ancient Romans, and it took them several centuries edness to the to comprehend the idea and put it into practice. We owe them a debt of gratitude for it. The custom of regulating business and politics and the affairs of life generally by voluntary but binding agreements is something without which we moderns would not think life worth living. It was after the Roman world—that is to say, Christendom, for in the Middle Ages the two terms were synony moushad become thoroughly familiar with the idea of contract, that the practice grew up of granting written charters to towns, or monasteries, or other corporate bodies. The charter of a medieval town was a kind of written contract by which the town ob tained certain specified immunities or privileges from the sovereign or from a great feudal lord, in exchange Our indebt ancient Ro mans. for some specified service which often took the form of a money payment. It was common enough for a town to buy liberty for hard cash, just as a Mediæval man might buy a farm. The word charter charters. originally meant simply a paper or written document, and it was often applied to deeds for the transfer of real estate. In contracts of such importance papers or parchment documents were drawn up and carefully preserved as irrefragable evidences of the transaction. And so, in quite significant phrase the towns zealously guarded their charters as the "title-deeds of their liberties." The "Great (1215). After a while the word charter was applied in England to a particular document which speci fied certain important concessions forcibly Charter" wrung by the people from a most unwilling sovereign. This document was called Magna Charta, or the "Great Charter," signed at Runnymede, June 15, 1215, by John, king of England. After the king had signed it and gone away to his room, he rolled in a mad fury on the floor, screaming curses, and gnawing sticks and straw in the impotence of his wrath.1 Perhaps it would be straining words to cali a transaction in which the consent was so one-sided a "contract," but the idea of Magna Charta was derived from that of the town charters with which people were already familiar. Thus a charter came to mean "a grant made by the sovereign either to the whole people or to a portion of them, securing to them the enjoyment of certain rights." Now in legal usage "a charter differs from a constitution in this, that the former is granted by the sovereign, while the latter is established by the people themselves: both are the fundamental law of the land."2 The distinc 1 Green, Hist. of the English People, vol. i. p. 248. tion is admirably expressed, but in history it is not always easy to make it. Magna Charta was in form a grant by the sovereign, but it was really drawn up by the barons, who in a certain sense represented the English people; and established by the people after a long struggle which was only in its first stages in John's time. To some extent it partook of the nature of a written constitution. Let us now observe what happened early in 1689, after James II. had fled from England. On January 28th parliament declared the throne vacant. Parliament then drew up the "Declaration of Rights," a document very similar in purport to the first eight amendments to our Federal Constitution, and on the 13th of February the two houses offered the crown to William and Mary on condition of their accepting this declaration of the "true, ancient, and indubitable rights of the people of this realm." The crown having been accepted on these terms, parliament in the following December enacted the famous "Bill of Rights," which simply put their previous declaration into the form of a declaratory statute. The Bill of Rights was not even in form a grant from a sovereign; it was an instrument framed by the representatives of the people, and without promising to respect it William and Mary could no more have mounted the throne than a president of the United States could be inducted into office if he were to refuse to take the prescribed oath of allegiance to the Federal Constitution. The Bill of Rights was therefore, strictly speaking, a piece of written constitution; it was a constitution as far as it went. The "Bill of The seventeenth century, the age when the builders of American commonwealths were coming from England, was especially notable in England for two things. One was the rapid growth of modern commercial occupations and habits, the other was the temporary overthrow of monarchy, soon followed by the final subjection of the crown to parliament. Accordingly the sphere of contract and the sphere of popular sovereignty were enlarged in men's minds, and the notion of a written constitution first began to find expression. The "Instrument of Government" which in 1653 created the protectorate of Oliver Cromwel was substantially a written constitution, but it emanated from a questionable authority and was not ratified. It was drawn up by a council of army officers; and "it broke down because the first parliament summoned under it refused to acknowledge its binding force." 1 The dissolution of this parliament accordingly left Oliver absolute dictator. In 1656, when it seemed so necessary to decide what sort of Foreshadowgovernment the dictatorship of Cromwell ing of the was to prepare the way for, Sir Harry Vane idea by Sir proposed that a national convention should (1656). be called for drawing up a written constitution.2 The way in which he stated his case showed that he had in him a prophetic foreshadowing of the American idea as it was realized in 1787. But Vane's ideas were too far in advance of his age to be realized then in England. Older ideas, to which men were more accustomed, determined the course of events there, and it was left for Americans to create a government by means of a written constitution. And when Amer American Harry Vane 1 Gardiner, Constitutional Documents of the Puritan Revolution, p. lx. 2 See Hosmer's Young Sir Henry Vane, pp. 432-444, — one of the best books ever written for the reader who wishes to understånd the state of mind among the English people in the crisis when they laid the foundations of the United States. |