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, and have at various times been extremely potent factors in American history. 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 constitutious 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. The socalled 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 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. 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.' 1 See post, Chapters XXIII. and XXXIII. CHAPTER IV NATURE OF THE FEDERAL GOVERNMENT THE acceptance of the Constitution of 1789 made the American people a nation. It turned what had been a League of States, into a Federal State, by giving it a National Government with a direct authority over all citizens. But as this national government was not to supersede the governments of the States, the problem which the Constitution-makers had to solve was two-fold. They had to create a central government. They had also to determine the relations of this central government to the States as well as to the individual citizen. An exposition of the Constitution and criticism of its working must therefore deal with it in these two aspects, as a system of national government built up of executive powers and legislative bodies, like the monarchy of England or the republic of France, and as a Federal system linking together and regulating the relations of a number of commonwealths which are for certain purposes, but for certain purposes only, subordinated to it. It will conduce to clearness if these two aspects are kept distinct; and the most, convenient course will be to begin with the former, and first to describe the American system as a National system, leaving its Federal character for the moment on one side. It must, however, be remembered that the Constitution does not profess to be a complete scheme of government, creating organs for the discharge of all the functions and duties which a civilized community undertakes. It presupposes the State governments. It assumes their existence, their wide and constant activity. It is a scheme designed to provide for the dis charge of such and so many functions of government as the States do not already possess and discharge. It is therefore, so to speak, the complement and crown of the State Constitutions, which must be read along with it and into it in order to make it cover the whole field of civil government, as do the Constitutions of such countries as France, Belgium, Italy. The administrative, legislative, and judicial functions for which the Federal Constitution provides are those relating to matters which must be deemed common to the whole nation, either because all the parts of the nation are alike interested in them, or because it is only by the nation as a whole that they can be satisfactorily undertaken. The chief of these common or national matters are 1 War and peace treaties and foreign relations generally. Federal courts of justice. Commerce, foreign and domestic. Currency. Copyright and patents. The post-office and post roads. Taxation for the foregoing purposes, and for the general sup port of the Government. The protection of citizens against unjust or discrimating legislation by any State.2 This list includes the subjects upon which the national legisla ture has the right to legislate, the national executive to enforce the Federal laws and generally to act in defence of national interests, the national judiciary to adjudicate. All other legislation and administration is left to the several States, without power of interference by the Federal legislature or Federal executive. Such then being the sphere of the National government, let us see in what manner it is constituted, of what departments it consists. 1 The full list will be found in the Copstitution, Art. i. § 8 (printed in the Appendix), with which may be compared the British North America Act 1867 (30 and 31 Vict. cap. 8), and the Federal Council of Australasia Act 1885 (48 and 49 Vict. cap. 60), and the Swiss Constitution of 1874 (Arts. 8, 22, 30, 42, 54, 64, 67-70). 2 Amendments xiv. and xv. The framers of this government set before themselves four objects as essential to its excellence, viz.— Its vigour and efficiency. The independence of each of its departments (as being essential to the permanency of its form). Its dependence on the people. The security under it of the freedom of the individual. The first of these objects they sought by creating a strong executive, the second by separating the legislative, executive, and judicial powers from one another, and by the contrivance of various checks and balances, the third by making all authorities elective and elections frequent, the fourth both by the checks and balances aforesaid, so arranged as to restrain any one department from tyranny, and by placing certain rights of the citizen under the protection of the written Constitution. They preferred, the old paths, to Accordingly they colonial govern They had neither the rashness nor the capacity necessary for constructing a Constitution a priori. There is wonderfully little genuine inventiveness in the world, and perhaps least of all has been shown in the sphere of political institutions. These men, practical politicians who knew how infinitely difficult a business government is, desired no bold experiments. so far as circumstances permitted, to walk in follow methods which experience had tested.1 started from the system on which their own ments, and afterwards their State governments, had been conducted. This system bore a general resemblance to the British Constitution; and in so far it may with truth be said that the British Constitution became a model for the new national government. They held England to be the freest and bestgoverned country in the world, but were resolved to avoid the weak points which had enabled King George III. to play the tyrant, and which rendered English liberty, as they thought, far inferior to that which the constitutions of their own States 1 Mr. Lowell has said with equal point and truth of the men of the Convention: "They had a profound disbelief in theory and knew better than to commit the folly of breaking with the past. They were not seduced by the French fallacy that a new system of Government could be ordered like a new suit of clothes. They would as soon have thought of ordering a suit of flesh and skin. It is only on the roaring loom of time that the stuff is woven for such a vesture of their thought and experience as they were meditating."-Address on Democracy, delivered Oct. 6, 1884. VOL. I Ꭰ |