[Illustration: _Photo Henry Dixon & Son_ _From the Portrait painted by
Harrington Mann for Gray's Inn_]
JAMES M. BECK
HONORARY BENCHER OF GRAY'S INN
_The Constitution of the United States_
_A brief Study of the Genesis, Formulation and Political Philosophy of
the Constitution of the United States_
_By James M. Beck, LL.D_.
_Solicitor-General of the United States, Honorary Bencher of Gray's Inn_
_With a Preface by The Earl of Balfour_
"_Where there is no vision, the people perish; but he that keepeth the
Law, happy is he."--Proverbs xxix_. 18
"_Remove not the ancient landmark, which thy fathers have
set."--Proverbs xxii_. 28
TO THE HON. HARRY M. DAUGHERTY
ATTORNEY-GENERAL OF THE UNITED STATES
A TRUE AND LOYAL FRIEND, A FAIR AND CHIVALROUS FOE
With whom it is the author's great privilege to collaborate as
Solicitor-General in defending and vindicating in the Supreme Court of
the United States the principles and mandates of its Constitution
_Chamonix_,
_July_ 14 1922
_Preface by the Earl of Balfour_[1]
I have been greatly honoured by your invitation to take the chair on
this interesting occasion. It gives me special pleasure to be able to
introduce to this distinguished audience my friend, Mr. Beck,
Solicitor-General of the United States. It is a great and responsible
office; but long before he held it he was known to the English public
and to English readers as the author who, perhaps more than any other
writer in our language, contributed a statement of the Allied case in
the Great War which produced effects far beyond the country in which it
was written or the public to which it was first addressed. Mr. Beck
approached that great theme in the spirit of a great judge; he
marshalled his arguments with the skill of a great advocate, and the
combination of these qualities--qualities, highly appreciated
everywhere, but nowhere more than in this Hall and among a Gray's Inn
audience--has given an epoch-making character to his work. To-day he
comes before us in a different character. He is neither judge nor
advocate, but historian: and he offers to guide us through one of the
most interesting and important enterprises in which our common race has
ever been engaged.
The framers of the American Constitution were faced with an entirely new
problem, so far, at all events, as the English-speaking world was
concerned; and though they founded their doctrines upon the English
traditions of law and liberty, they had to deal with circumstances which
none of their British progenitors had to face, and they showed a
masterly spirit in adapting the ideas of which they were the heirs to a
new country and new conditions. The result is one of the greatest pieces
of constructive statesmanship ever accomplished. We, who belong to the
British Empire, are at this moment engaged, under very different
circumstances, in welding slowly and gradually the scattered fragments
of the British Empire into an organic whole, which must, from the very
nature of its geographical situation, have a Constitution as different
from that of the British Isles, as the Constitution of the British Isles
is different from that of the American States. But all three spring from
one root; all three are carried out by men of like political ideals; all
three are destined to promote the cause of ordered liberty throughout
the world. In the meanwhile we on this side of the Atlantic cannot do
better than study, under the most favourable and fortunate conditions,
the story of the great constitutional adventure which has given us the
United States of America.
A.J.B.
[Footnote 1: [Address of the Earl of Balfour as Chairman on the occasion
of the delivery on June 13, 1922, in Gray's Inn of the first of the
lectures herein reprinted.]]
_Introduction by Sir John Simon, K.C._[2]
I have the privilege and the honour of adding a few words to express our
thanks to the Solicitor-General of the United States for this memorable
course of lectures. They are memorable alike for their subject and their
form; alike for the place in which we are met and for the man who has so
generously given of his time and learning for our instruction. Mr. Beck
is always a welcome visitor to our shores, and nowhere is he more
welcome than in these ancient Inns of Court which are the home and
source of law for Americans and Englishmen alike. In contemplating the
edifice reared by the Fathers of the American Constitution we take pride
in remembering that it was built upon British foundations by men, many
of whom were trained in the English Courts; and when Mr. Beck lectures
on this subject to us, our interest and our sympathy are redoubled by
the thought that whatever differences there may be between the Old World
and the New, citizens of the United States and ourselves are the Sons of
a Common Mother and jointly inherit the treasure of the Common Law. And
we cannot part with Mr. Beck on this occasion without a personal word.
Plato records a saying of Socrates that the dog is a true philosopher
because philosophy is love of knowledge, and a dog, while growling at
strangers, always welcomes the friends that he knows. And the British
public often greets its visitors with a touch of this canine philosophy.
We regard Mr. Beck, not as a casual visitor, but as a firm friend to
whom we owe much; he has been here again and again and we hope will
often repeat his visits, and Englishmen will never forget how, at a
crisis in our fate, Mr. James Beck profoundly influenced the judgment of
the neutral world and vindicated, by his masterly and sympathetic
argument, the justice of our cause.
[Footnote 2: Address of Sir John Simon on the conclusion, on June
19,1922, of the three lectures herein printed.]
_Author's Introduction_
This book is a result of three lectures, which were delivered in the
Hall of Gray's Inn, London, on June 13, 15, and 19, 1922, respectively,
under the auspices and on the invitation of the University of London.
The invitation originated with the University of Manchester, which,
through its then Vice-Chancellor, Dr. Ramsay Muir, two years ago
graciously invited me to visit Manchester and explain American political
institutions to the undergraduates. Subsequently I was greatly honoured
when the Universities of Cambridge, Edinburgh and London joined in the
invitation.
Unfortunately for me--for I greatly valued the privilege of explaining
the institutions of my country to the undergraduates of these great
Universities--my political duties made it impossible for me to visit
England prior to June 1, about which time the Supreme Court of the
United States, in which my official duties largely preoccupy my time,
adjourns for the summer. Any dates after June 1 were inconvenient to the
first three Universities, but it was my good fortune that the University
of London was able to carry out the plan, and that it had the cordial
co-operation of that venerable Inn of Court, Gray's Inn, one of the
"noblest nurseries of legal training."
Thus I was privileged to address at once an academic and a professional
audience.
I came to England for this purpose as a labour of love. I had no
anticipation of success, for I feared that the interest in the
subject-matter of my lectures would be very slight.
My surprise and gratification increased on the occasion of each lecture,
as the audiences grew in numbers and distinction. Many leading jurists
and statesmen took more than a mere complimentary interest, and some of
them, although pressed with social and public duties, honoured me with
their attendance at all three lectures. How can I adequately express my
appreciation of the great honour thus done me by the Earl of Balfour,
the Lord Chancellor, Lord Justice Atkin, the Vice-Chancellor of the
University of London, and many other leaders in academic and legal
circles--not to forget the Chief Justice of the United States, who paid
me the great compliment of attending the last lecture. To one and nil of
my auditors, my heartfelt thanks!
I also must not fail to acknowledge the generous space given in the
British Press to these lectures, and the even more generous allusions to
them in the editorial columns. An especial acknowledgment is due to
Viscount Burnham and _The Daily Telegraph_ for their generous interest
in this book. The good cause of Anglo-American friendship has no better
friend than Lord Burnham.
This experience has convinced me that now, more than ever before, there
is in England a deep interest in American institutions and their
history. This is as it should be, for--for better or worse--England and
America will play together a great part in the future history of the
world. In double harness they are destined to pull the heavy load of the
world's problems. Therefore these "yoke-fellows in equity" must know
each other better, and, what is more, _pull together_.
As I was revising the proofs of these lectures in beautiful Chamonix,
the prospectus of the Scottish-American Association reached me, in which
its Honorary Secretary and my good friend, Dr. Charles Sarolea, took
occasion to make the following suggestion to his British compatriots:
"To remove those causes of estrangement, to avoid a fateful
catastrophe, in other words, to bring about a cordial understanding
_with_ America, the first condition must be an understanding _of_
America. Such an understanding, or even the atmosphere in which such
an understanding may grow, has still to be created. It is indeed
passing strange that in these days of cheap books and free
education, America should be almost a '_terra incognita_,' that we
should know next to nothing of American history, of the American
Constitution, of American practical politics, of the American
mentality. We scarcely read American newspapers or American books.
Even such masters of classical prose as Francis Parkman, perhaps the
greatest historian who has used the English language as his vehicle,
are almost unknown to the average reader. Our students do not visit
American universities as they used before the War to visit German
universities. The consequence is that again and again we are running
the risk of perpetrating the most grotesque errors of judgment, of
committing the most serious political blunders, in defiance of
American public opinion."
The success of my Gray's Inn lectures convinces me that Dr. Sarolea
underestimates the interest in America and its history in England.
However, the episode, which is treated in these lectures, is, as he
says, "_terra incognita_" not only in England, but even in the United
States. It is amazing how little is known in America of the facts given
in my second lecture. The American student, after rejoicing in the
victory at Yorktown and the end of the War of Independence, generally
skips about eight years to 1789, mid his interest in the history of his
own country recommences with the inauguration of President Washington.
Students of history in both countries thus miss one of the most
interesting and instructive chapters of American history, and indeed of
any history.
I have ventured to add to my Gray's Inn lectures another address, which
I delivered as the "annual address" at the session of the American Bar
Association in Cincinnati, Ohio, on August 31, 1921. I do so, because it
has a direct bearing on the decay of the spirit of constitutionalism
both in America and elsewhere. It discusses a great _malaise_ of our
age, for which, I fear, no written Constitution, however wise, is an
adequate remedy. It was published in condensed form in the issue of the
_Fortnightly_ for October, 1921, and an acknowledgment is due to its
courteous editor for permission to republish it.
I have forborne in these lectures to make more than a passing reference
to the League of Nations and the great Conference which framed it,
tempting as the obvious analogy was. The reader who studies the
appendices will see that the Covenant of the League more nearly
resembles the Articles of Confederation than the Constitution of 1787.
I only mention the subject to suggest that the reader of these lectures
will better understand why the American people take the written
obligations of the League so seriously and literally. We have been
trained for nearly a century and a half to measure the validity and
obligations of laws and executive acts in Courts of Justice and to apply
the plain import of the Constitution. Our constant inquiry is, "Is it so
nominated" in that compact? In Europe, and especially England,
constitutionalism is largely a spirit of great objectives and ideals.
Therefore, while in these nations the literal obligations of Articles X,
XI, XV, and XVI of the Covenant of the League are not taken rigidly, we
in America, pursuant to our life-long habit of constitutionalism,
interpret these clauses as we do those of our Constitution, and we ask
ourselves, Are we ready to promise to do, that which these Articles
literally import, join, for example, in a commercial, social and even
military war against any nation that is deemed an aggressor, however
remote the cause of the war may be to us? Are we prepared to say that in
the event of a war or threatened danger of war, the Supreme Council of
the League may take any action it deems wise and effectual to maintain
peace? This is a very serious committal. Other nations may not take it
so literally, but with our life-long adherence to a written Constitution
as a solemn contractual obligation, we do.
This is said in no spirit of hostility to the League, but only to
explain the American point of view. Since I delivered these lectures, I
took a short trip to the Continent, and while sojourning in Geneva, made
a visit to the offices of the League. All I there saw greatly interested
me, and I could have nothing but a feeling of admiration for the
effective and useful administrative work which the League is doing.
The men who framed the Covenant of the League tried to do, under more
difficult, but not dissimilar, conditions, what the framers of the
American Constitution did in 1787. In both cases the aim was high, the
great purpose meritorious. Those Americans who, for the reasons stated,
are not in sympathy with the structural form and political objectives of
the League, are not lacking in sympathy for its admirable administrative
work in co-ordinating the activities of civilized nations for the common
good. In any study of a World Constitution, the example of those who
framed the American Constitution can be studied with profit.
JAMES M. BECK.
_Chamonix_,
July 14, 1922.
_Contents_
PREFACE BY THE EARL OF BALFOUR
INTRODUCTION BY SIR JOHN SIMON
AUTHOR'S INTRODUCTION
FIRST LECTURE: THE GENESIS OF THE CONSTITUTION
SECOND LECTURE: THE FORMULATION OF THE CONSTITUTION
THIRD LECTURE: THE POLITICAL PHILOSOPHY OF THE CONSTITUTION
THE REVOLT AGAINST AUTHORITY
_I. The Genesis of the Constitution of the United States_
I trust I need not offer this audience, gathered in the noble hall of
this historic Inn--of "old Purpulei, Britain's ornament"--any apology
for challenging its attention in this and two succeeding addresses to
the genesis, formulation, and the fundamental political philosophy of
the Constitution of the United States. The occasion gives me peculiar
satisfaction, not only in the opportunity to thank my fellow Benchers of
the Inn for their graciousness in granting the use of this noble Hall
for this purpose, but also because the delivery of these addresses now
enables me to be, for the moment, in fact as in honorary title a
Bencher, or Reader, of this time-honoured society.
If I needed any justification for addresses, which I was graciously
invited to deliver under the auspices of the University of London, an
honour which I also gratefully acknowledge, it would lie in the fact
that we are to consider one of the supremely great achievements of the
English-speaking race. It is in that aspect that I shall treat my theme;
for, as a philosophical or juristic discussion of the American
Constitution, my addresses will be neither as "deep as a well, nor as
wide as a church door."
My auditors will bear in mind that I must limit each address to the
duration of an hour, and that I cannot go deeply or exhaustively into a
subject that has challenged the admiring comment and profound
consideration of the intellectual world for nearly a century and a half.
If England and America are to act together in the coming time--and the
destinies of the world are, to a very large extent, in their keeping,
then they must know each other better, and, to this end, they must take
a greater interest in each other's history and political institutions.
My principal purpose in these lectures is to deepen the interest of this
great nation in one of the very greatest and far-reaching achievements
of our common race.
Americans have never lacked interest in English history; for however
broad the stream of our national life, how could we ignore its chief
source?
But is there in England an equal interest in the history of America,
whose origin and development constitute one of the most dramatic and
significant dramas ever played upon the stage of this "wide and
universal theatre of man"? It is true that Thackeray, in his
_Virginians_, gave us in fiction the finest picture of our colonial
life, and the late and deeply lamented Lord Bryce wrote one of the best
commentaries upon our institutions in _The American Commonwealth_. In
more recent years two of the most moving portraits of our Hamilton and
Lincoln are due to your Mr. Oliver and Lord Charnwood. We gratefully
recognize this; and yet, how many educated Englishmen have studied that
little known chapter of our history, which gave to the progress of
mankind a contribution to political science which your Gladstone praised
as the greatest "ever struck off at a given time by the brain and
purpose of man"? If "peace hath her victories no less renown'd than
war," this achievement may well justify your study and awaken your
admiration; for, as I have already said and cannot too strongly
emphasize, it was the work of the English-speaking race, of men who,
shortly before they entered upon this great work of constructive
statecraft, were citizens of your Empire. The conditions of colonial
development had profoundly stimulated in these English pioneers the
sense and genius for constitutionalism.
In his speech on Conciliation with America of March 22, 1775, Edmund
Burke showed his characteristically philosophic comprehension of this
powerful constitutional conscience of the then American subjects of the
Empire. After stating that in no other country in the world was law so
generally studied, and referring to the fact that as many copies of
Blackstone's Commentaries had been sold in America as in England, he
added:
"This study renders men acute, inquisitive, dexterous, prompt in
attack, ready in defence, full of resources. In other countries the
people, more simple and of a less mercurial cast, judge of an ill
principle in government only by an actual grievance; here they
anticipate the evil, and judge of the pressure of the grievance by
the badness of the principle."
Moreover, these hardy pioneers were the privileged heirs of the great
political traditions of England. While the Constitution of the United
States was very much more than an adaptation of the British
Constitution, yet its underlying spirit was that of the English speaking
race and the Common Law. Behind the framers of the Constitution, as they
entered upon their momentous task, were the mighty shades of Simon de
Montfort, Coke, Sandys, Bacon, Eliot, Hampden, Lilburne, Milton,
Shaftesbury and Locke. Could there be a better illustration of Sir
Frederick Pollock's noble tribute to the genius of the common law:
"Remember that Our Lady, the Common Law, is not a task-mistress, but
a bountiful sovereign, whose service is freedom. The destinies of
the English-speaking world are bound up with her fortunes and
migrations and its conquests are justified by her works"?
Another reason makes the consideration of the subject not only
interesting but opportune. "These are the times that try men's souls."
It is a time of sifting, when men of all nations in civilization in
these critical days are again testing the value even of those political
institutions which have the sanction of the past. Society is in a state
of flux. Everywhere the foundations of governmental structures seem to
be settling--let us hope and pray upon a _surer_ foundation--and when
the seismic convulsion of the world war is taken into account, it is not
surprising that this is so. While the storm is not yet past and the
waves have not wholly subsided, it is natural that everywhere thoughtful
men as true mariners are taking their reckonings to know where they are
and whether the frail bark of human institutions is still sufficiently
seaworthy to keep afloat.
Moreover, the patent evidences of weakness in the international
organization that we call civilization, the imperative need of ending
the spirit of moral anarchy, and the urgent necessity of rebuilding the
shattered ruins of the social edifice on surer foundations by the
integration of the nations, if possible, into some new form of world
organization, gives peculiar interest in these terrible days to the
manner in which the American people solved a similar problem more than a
century ago.
Then, as now, a world war had ended. Then, as now, half the world was
prostrated by the wounds of fratricidal strife. As Washington said: "The
whole world was in an uproar," and he added that the task "was to steer
safely between Scylla and Charybdis." The problem, then as now, was not
only to make "the world safe for democracy," but to make democracy, for
which there is no alternative, safe for the world. The thirteen colonies
in 1787, while small and relatively unimportant, were, however, a little
world in themselves, and, relatively to their numbers and resources,
this problem, which they confronted and solved, differed in degree but
not in kind from that which now confronts civilization. Impoverished in
resources, exhausted by the loss of the flower of their youth,
demoralized by the reaction from feverish strife, the forces of
disintegration had set in in the United States between 1783 and 1787.
Law and order had almost perished and the provisional government had
been reduced to impotence. A few wise and noble spirits, true Faithfuls
and Great Hearts, led a despondent people out of the Slough of Despond
till their feet were again on firm ground and their faces turned towards
the Delectable Mountains of peace, justice, and liberty. Let it be
emphasized that they did this, not by seeking more power, but by
imposing restraints upon themselves. That spirit of self-restraint is
the essence of the American Constitution.
So enduring was their achievement that to-day the Constitution of the
United States is the oldest comprehensive written form of government now
existing in the world. Few, if any, forms of government have better
withstood the mad spirit of innovation, or more effectively proved their
merit by the "arduous greatness of things done."
For this reason, as the nations of the world are now trying in a cosmic
form and under similar conditions to do that which the founders of the
American Republic in 1787 did in a microcosmic form, a short narration
of that earlier achievement may not be unprofitable in this day and
generation, when we are blindly groping towards some common basis for
international co-ordination.
One of England's greatest Prime Ministers, William Pitt, shortly after
the adoption of the Constitution, prophetically said that it would be
the admiration of the future ages and the pattern for future
constitution building. Time has verified his prediction, for
constitution making has been, since the American Constitution was
adopted, a continuous industry. The American Constitution has been the
classic model for the federated State. Lieber estimated that three
hundred and fifty constitutions were made in the first sixty years of
the nineteenth century, and, in the constituent States of the American
Union, one hundred and three new Constitutions were promulgated in the
first century of the United States.
"Have you a copy of the French Constitution?" was asked of a bookseller
during the second French Empire, and the characteristically witty Gallic
reply was: "We do not deal in periodical literature."
Constitutions, as governmental panaceas, have come and gone; but it can
be said of the American Constitution, paraphrasing the noble tribute of
Dr. Johnson to the immortal fame of Shakespeare, that the stream of
time, which has washed away the dissoluble fabric of many other paper
constitutions has left almost untouched its adamantine strength.
Excepting the first ten amendments, which were virtually a part of the
original charter, only nine others have been adopted in more than one
hundred and thirty years.
A constitution, while primarily for the distribution of governmental
powers, is, in its last analysis, a formal expression of adherence to
that which in modern times has been called the higher law, and which in
ancient times was called natural law. The jurisprudence of every nation
has, with more or less clearness, recognized the existence of certain
primal and fundamental laws which are superior to the laws, statutes, or
conventions of living generations. The original use of the term was to
import the superiority of the Imperial edict to the laws of the Comitia.
All nations have recognized this higher law to a greater or less extent.
If we turn to the writings of the most intellectual race in ancient
time and possibly in recorded history--the Greeks--we shall see the
higher law vindicated with incomparable power in the moral philosophy of
its three greatest dramatists, Aeschylus, Sophocles, and Euripides. How
was it better expressed than by Antigone when she was asked whether she
had transgressed the laws of the state and replied:
"Yes, for that law was not from Zeus, nor did Justice, dweller with
the gods below, establish it among men; nor deemed I that thy
decree--mere mortal that thou art--could override those unwritten
and unfailing mandates, which are not of to-day or yesterday, but
ever live and no one knows their birthtide."
Five centuries later the greatest of the Roman lawyers and orators,
Cicero, spoke in the same terms of a higher law, "which was never
written and which we are never taught, which we never team by reading,
but which was drawn by nature herself."
The Roman jurists gave it express recognition. They always recognized
the distinction between _jus civile_, or the law of the State, and the
_jus naturale_, or the law of Nature. They nobly conceived that human
society was a single unit and that it was governed by a law that was
both antecedent and paramount to the law of Rome. Thus, the idea of a
higher law transcending the power of a living generation, and therefore
eternal as justice itself--became lodged in our system of jurisprudence.
Nor was the Common Law wanting in a recognition of a higher law that
would curb the power of King or Parliament, for its earlier masters,
including four Chief Justices (Coke, Hobart, Holt, and Popham),
supported the doctrine, as laid down by Coke, that the judiciary had the
power to nullify a law if it were "against common right and
reason."--(_Bonham's Case_, 8 Coke Reports, 114.)
This view as to the limitation of government and the denial of its
omnipotence was powerfully accentuated in America by the very conditions
of its colonization. The good yeomen of England who journeyed to America
went in the spirit of the noble and intrepid Kent, when, turning his
back upon King Lear's temporary injustice, he said that he would "shape
his old course in a country new." Was it strange that the early
colonists, as they braved the hardships and perils of a dangerous
voyage, only to be confronted in the wilderness by disease, famine and
massacre, should fall back for their own government upon these primal
verities of human society, and claim not only their inherited rights as
Englishmen, but also the peculiar privileges of pioneers in an
unconquered wilderness?
This spirit of constitutionalism in America, which culminated in the
Constitution of the United States, had its institutional origin in the
spacious days of Queen Elizabeth. That wonderful age, which gave to the
world not only Shakespeare, Spenser and Jonson, but also Drake,
Frobisher and Raleigh, was the Anglo-Saxon reaction to the Renaissance.
The spirit of man had a new birth and was breaking away from the too
rigid bonds of ancient custom and authority.
Among the notable, but little known, leaders of that time was Sir Edwin
Sandys, the leading spirit of the London (or Virginia) company. He was a
Liberal when to be such was an "extra hazardous risk." He was the son of
a Liberal, for his father, a great prelate, had been sent to the Tower
for preaching in defence of Lady Jane Grey. The son, Sir Edwin, was the
foe of monopolies, and in the same Parliament that impeached the great
genius of this Inn, Francis Bacon, Sandys advocated the then novel
proposition that accused prisoners should have the right to be
represented by counsel, to which the strange objection was made that it
would subvert the administration of justice. As early as 1613, he had
boldly declared in Parliament that even the King's authority rested upon
the clear understanding that there were reciprocal conditions which
neither ruler nor subject could violate with impunity. He might not too
fancifully be called the "Father of American Constitutionalism," for he
caused a constitution--possibly the first time that that word was ever
applied to a comprehensive scheme of government--to be drafted for the
little colony of Virginia in 1609 and amplified in 1612. Speaking in
this venerable Hall, whose very walls eloquently remind us of the mighty
genius of Francis Bacon, it is interesting to recall that these two
charters of government, which were the beginning of Constitutionalism in
America and therefore the germ of the Constitution of the United States,
were put in legal form for royal approval by Lord Bacon himself. Thus
the immortal Treasurer of this Inn is directly linked with the
development of Constitutional freedom in America.
Bacon became a member of the council for the Virginia Company in 1609.
His deep interest in it is attested in the dedication to him by William
Strachey in 1618 of the latter's _Historie of Travaile into Virginia
Brittania_.
In his speech in the House of Commons on January 30, 1621, Bacon saw a
vision of the future and predicted the growth of America, when he said:
"This kingdom now first in His Majesty's Times hath gotten a lot or
portion in the New World by the plantation of Virginia and the
Summer Islands. And certainly it is with the kingdoms on earth as it
is in the kingdom of heaven, sometimes a grain of mustard seed
proves a great tree."
Truly the mustard seed of Virginia did become a great tree in the
American Commonwealth.
One of Bacon's nephews, also of the Inns of Court, Nathaniel Bacon,
became the first Liberal leader in the Colonies, and led the first
revolt against colonial misrule. He was probably of Gray's Inn, for it
is difficult to imagine a Bacon studying in any Inn than the one to
which the great Bacon had given so much loving care.
Due to these charters, on July 30, 1619, the little remnant of colonists
whom disease and famine had left untouched were summoned to meet in the
church at Jamestown to form the first parliamentary assembly in America,
the first-born of the fruitful Mother of Parliaments. It was due to
Sandys not only that the first permanent English settlement in the
Western World was planted at Jamestown in 1607, but that a later group
of "adventurers"--for such they called themselves--destined to be more
famous, were driven by chance of wind and wave to land on the coast of
Massachusetts. Thus was established, not only the beginning of England's
colonial Empire--still one of the most beneficent forces in the
world--but also the principle of local self-government, which, in the
Western World, was destined to develop the American Commonwealth. The
compact, signed in the cabin of the _Mayflower_, while not in strictness
a constitution, like the Virginia Charter, was yet destined to be a
landmark of history.
Sandys suffered for his convictions, for the party of reaction convinced
King James that Virginia was a nest of sedition, and the arbitrary
ruler, in the reorganization of the London company, gave a pointed
admonition by saying: "Choose the devil, if you will, but not Sir Edwin
Sandys." In 1621 he was committed to the Tower and only released after
the House of Commons had made a vigorous protest against his
incarceration. His successor as treasurer of the London company was
Shakespeare's patron, the Earl of Southampton, and it is not a fanciful
conjecture to assume that, when the news of the disaster which befell
one of the fleets of the London Company on the Island of Bermuda reached
England, it inspired Shakespeare to write his incomparable sea idyl,
_The Tempest_. If so, this lovely drama was Shakespeare's unconscious
apostrophe to America, for in Ariel--seeking to be free--can be
symbolized her awakening spirit, while Prospero, with his thaumaturgic
achievements, suggests a constructive genius, which in a little more
than a century has made one of the least of the nations to-day one of
the greatest.
Bacon, Sandys, Southampton and the Liberal leaders of the House of
Commons had implanted in the ideas of the colonists the spirit of
constitutionalism, which was destined to influence profoundly the whole
development of the American colonies, and finally to culminate in the
Constitution of the United States.
The later struggle in the Long Parliament, the fall of Charles I, and
more especially the deposition of James II, the accession of William of
Orange, and the substitution for the Stuart claim of divine right that
of the supremacy of the people in Parliament, naturally had their
reaction in the Western World in intensifying the spirit of
constitutionalism in the growing American Commonwealth.
The colonial history was therefore increasingly marked by a spirit of
individualism, a natural partiality for local rule, and a tenacious
adherence to their special privileges, whether granted to Crown
colonies, like New Hampshire, New York, New Jersey, Virginia, the two
Carolinas, and Georgia, or proprietary governments, like Maryland,
Delaware, and Pennsylvania, or charter governments, such as
Massachusetts, Rhode Island, and Connecticut. In the three colonies last
named formal corporate charters were granted by the Crown, which in
themselves were constitutions in embryo, and the colonists thus acquired
written rights as to the government of their internal affairs, upon the
maintenance of which they jealously insisted. Thus arose the spirit in
America, which treated constitutional rights, not so much as special
privileges granted by plenary Sovereignty, but as contractual
obligations which could be enforced in the Courts against the Sovereign.
All this developed in the colonists a powerful sense of constitutional
morality, and its pertinency to my present theme lies in the fact that
when each of the thirteen colonies became, at the conclusion of the War
of Independence, a separate and independent nation, they were more
concerned, in establishing a central government, to limit its authority
and to maintain local self-government than they were to give to the
new-born nation the powers which it needed. They carried their
constitutionalism to extremes, which nearly made a strong and efficient
central government an impossibility.
Nothing was less desired by them than a unified government. It was
destined to be wrung from their hard necessities. The Constitution was
the reflex action of two opposing tendencies, the one the imperative
need of an efficient central government, and the other the passionate
attachment to local self-rule. Co-operation between the colonies had
been a matter of long discussion and earnest debate, and primarily
resulted from the necessity of defence against a common foe the French
in Canada, and the Indians of the forest. In 1643 four of the New
England colonies united in a league to defend themselves. In 1693
William Penn made the first suggestion for a union of all the colonies.
In 1734 a council was held at Albany at the instance of the Crown to
provide the means for the defence against France in Canada, and it was
then that Franklin submitted the first concrete form for a union of the
colonies into a permanent alliance. It was in advance of the times, for,
conservative as it was, it was unfortunately opposed both by the Crown
and the colonies themselves.
The time was not ripe for any such union, and the reason was apparent.
The colonies differed very much in the character of their populations,
in the nature of their economic interests, and in their political
antecedents. They were not wholly of the English race. Many nations in
Europe had already contributed to the population. For example, New York
was partly Dutch, and in Pennsylvania there was a considerable element
of the Swedes, Germans, and Swiss. Moreover, the colonists were as
widely separated from each other, measured by the facilities of
locomotion, as are the most remote nations of the world to-day. Only a
few men ever found occasion to leave their colony to journey to another,
and most men never left, from birth to death, the community in which
they lived. Outside of the few scattered communities in the different
colonies there was an almost unbroken wilderness, with few wagon roads
and in places only a bridle path. The only methods of communication were
the letters and still fewer newspapers, which were carried by post
riders often through an almost trackless wilderness.
Obviously, a working government could not easily be constituted between
peoples of different religions, races, and economic interests, who, for
the most part, never met each other face to face and with whom frequent
communication was impossible.
The differences between the colonies and the mother-country with respect
to internal taxation slowly developed into an issue of constitutionalism
rather than of legislative policy. As in England, the immediate question
affected the power of the Crown to give to the customs inspectors the
power to make general searches and seizures, to enforce the navigation
laws. In 1761 James Otis, of Massachusetts, made a fateful speech before
the colonial legislature, in which, asserting the illegality of the
search warrants on the ground that they violated the constitutional
rights of Englishmen to protection in their own homes, he asserted that
Acts of Parliament which violated the sanctity of the home were void and
that, more specifically, they violated the charter granted to
Massachusetts. Asserting the doctrine which at that time was the
doctrine of the English common law, as stated by Coke and three other
Chief Justices, he said:
"To say the parliament is absolute and arbitrary is a contradiction.
The Parliament cannot make two and two five. Omnipotency cannot do
it.... Parliaments are in all cases to declare what is for the good
of the whole; but it is not the declaration of parliament that makes
it so: there must be in every instance a higher authority, viz.,
GOD. Should an Act of Parliament be against any of His natural laws,
which are immutably true, their declaration would be contrary to
eternal truth, equity and justice, and consequently void; and so it
would be adjudged by the Parliament itself, when convinced of their
mistake."
It is a curious fact that in the reaction from the tyranny of the
Stuarts your country abandoned this principle of the common law by
substituting for the omnipotence of the Crown the omnipotence of
Parliament, while in my country the somewhat vague and unworkable
principle of the common law, which gave the judiciary the power to
invalidate an act of the legislature, when against natural reason and
justice, was developed into the great principle, without which
institutions in an heterogeneous and widely scattered democracy would be
unworkable, namely that the powers of government are strictly defined,
and that neither the executive, the legislative, nor the judicial
departments of the government can go beyond the precise limits
established by the fundamental law. Like the common law, the
Constitution was thus the result of a slow evolution. Mr. Gladstone, in
his oft-quoted remark, gave an erroneous impression when he said:
"As the British Constitution is the most subtle organism which has
proceeded from progressive history, so the American Constitution is
the most wonderful work ever struck off, at a given time by the
brain and purpose of man."
This assumes that the Constitution sprang, like Minerva, armed
_cap-à-pie,_ from the brain of the American people, whereas it was as
much the result of a slow, laborious, and painful evolution as was the
British Constitution. Probably Gladstone so understood the development
of the American Constitution and recognized that its framing was only
the culmination of an evolution of many years.
When the constitutional struggle between the colonies and the Parliament
became acute, the necessity of a union for a common defence became
imperative. As early as July, 1773, Franklin recommended the "convening
of a General Congress" so that the colonies would act together. His
suggestion was introduced in the Virginia House of Burgesses in May,
1774, and as a result there met in Philadelphia on September 5 of that
year the first Continental Congress, styled by themselves: "The
Delegates appointed by the Good People of these Colonies." Nothing was
further from their purpose than to form a central government or to
separate from England. This Congress only met as a conference of
representatives of the colonies to defend what they conceived to be
their constitutional rights.
Before the second Continental Congress met in the following year, the
accidental clash at Lexington and Concord had taken place, and as the
Congress again re-convened a momentous change had taken place, which
was, in fact, the beginning of the American Commonwealth. The Congress
became by force of circumstances a provisional government, and as such
it might well have claimed plenary powers to meet an immediate exigency.
So indisposed were they to separate from England or to substitute for
its rule that of a new government, that the Continental Congress, when
it then involuntarily took over the government of America, failed to
exercise any adequate power. It remained simply a conference without
real power. Each colony had one vote and the rule of unanimity
prevailed. Even its decisions were largely advisory, for they amounted
to little more than recommendations to the constituent States as to what
measures should be taken. Each colony complied with the recommendation
in its discretion and in its own way. Notwithstanding this fatal lack of
authority, the Continental Congress, then actually engaged in civil war,
created an army, and, through its committees, entered into negotiations
with foreign nations. To support the former, it issued paper money, with
the disastrous result that could be readily anticipated. While it had a
presiding officer, it had no executive, and the new nation, which was
hardly conscious of its own birth, had no judiciary.
Had this _de facto_ government assumed the plenary powers which
provisional governments must, under similar circumstances, necessarily
assume, it would have been better for the cause of the colonists. For
want of an efficient central government, the civil administration of the
infant nation was marked by a weakness and incapacity that defeated
Washington's plans and nearly broke his spirit. Washington's little army
was the victim of the gross incapacity of an impotent government. The
soldiers came and went, not as the general commanded, but as the various
colonies permitted. The tragedy of Valley Forge, when the little army
nearly starved to death, and literally the soldiers could be tracked
over the snows by their bleeding, unshod feet, was not due to lack of
clothing and provisions, but to the gross incapacity of a headless
government that if it had had the wisdom to act lacked the authority.
The situation was one of chaos. The colonies recruited their own
contingents, paid such taxes as they pleased, which grew increasingly
less, and the Congress had no coercive power to enforce its policies,
either with reference to internal or external affairs. This situation
was so clearly recognized that immediately after the Declaration of
Independence on July 4, 1776, the draft of a constitution was proposed
to give the central government more effective power; but, although the
necessity was manifest and most urgent, the so-called Articles of
Confederation, which were then drafted in 1776, were never finally
adopted by the requisite number of States until March, 1781, when the
war was nearly over. As the result proved, they marked only a very small
advance over the existing _de facto_ government, for the constituent
States were still too jealous of each other and too hostile to the
creation of a central government to form a truly effective government.
The founders of the Republic could only learn from their errors, but it
is their great merit that they had the ability to profit in the stern
school of experience, of which Franklin has said that it is a "dear
school, but fools will learn in no other."
The founders of the Republic were not fools, and while they did not, as
Gladstone seems to intimate, have the inspired wisdom to develop a
wonderful Constitution by sheer intuition unaided by experience, they
did have the ability to make of their very errors the stepping-stones to
a higher destiny.
By the Articles of Confederation, which, as stated, became effective in
1781, the conduct of foreign affairs was vested in the new government,
which was also given the power to create admiralty courts, regulate
coinage, maintain an army and navy, borrow money, and emit bills of
credit, but the great limitation was that in all other respects the
constituent States retained absolute power, especially with reference to
commerce and taxation. All that the central government could do was to
requisition the States to furnish food supplies, and the States were
then left to impose the taxes and, if necessary, to enforce their
payment in their own way, with the inevitable result that they vied with
each other in the struggle to evade them. The Confederation had no
direct power over the citizens of the several States. Moreover, the
Congress could not levy any taxes, or indeed pass any measure unless
nine out of the thirteen States agreed, and the Constitution could not
be amended except by unanimous vote. While the Congress could select a
presiding officer to serve for one year, yet he had no real executive
authority. During the recess of the Congress, a committee of thirteen,
consisting of one delegate from each State, had _ad interim_ powers, but
not greater than the Congress, which they represented.
Such a government would have been fatal to any people, and so it nearly
proved to be to the infant nation. Two circumstances saved them from the
consequences of such incapacity: one was the invaluable aid of France,
and the other the personality of George Washington. Of this great
leader, one of the noblest that ever "lived in the tide of time," it is
only necessary to quote the fine tribute paid to him by the greatest of
the Victorian novelists in his _Virginians_: