honoring the pioneers of the paths toward constitutional liberty.1

16

Although Cromwell broke his pledge to support the Agreement of the People, four years later, on the dissolution of the Barebones Parliament, he set in force the Instrument of Government, the first written constitution of a nation which was established.17 This failed, however, from its want of popular origin. The first Parliament chosen under it refused to acknowledge its superiority. Cromwell feared to submit the dispute to the courts, and ordered a dissolution. The representatives yielded, although claiming that he had transgressed the Instrument.18 The second Parliament modified the scheme with his consent, and within four years from its promulgation all pretence of obedience to the Instrument was abandoned.19

At the outbreak of the Revolution the colonists governed themselves through provincial governments, the executives of which

rules of civil government, but what themselves, orderly assembled for that purpose, do think fit to make. And the sword upon these conditions subjecting itself to the supreme judicature thus to be set up, how suddenly might harmony, righteousness, love, peace, and safety unto the whole body follow hereupon, as the happy fruit of such a settlement, if the Lord have any delight to be amongst us!"

16 The first, if not the only, writer who shows any adequate appreciation of the services of Lilburne is Professor Charles Borgeaud of the University of Geneva, Switzerland, in The Rise of Modern Democracy in Old and New England. Even he does not mention Lilburne's second trial, which contains the first successful argument against the validity of a statute ever made in a court of justice. The writer of this work has added a sketch of Lilburne's life in an appendix to this chapter, infra, p. 46.

17 It is reprinted in Gardiner's Constitutional Documents of the Puritan

Revolution, p. 314. This was 66 voted

by a council of officers, December 16, 1653. It is said by Hume to have been drawn by Lambert in four days (Hume's History of England, ch. lxi). Like the agreements of the people it provided for the periodical election of parliaments and set limits to the legislative authority in favor of Protestant religious liberty and for the security of the public debt. It did not, however, like the former, guarantee personal liberty.

By

18 Gardiner's Documents of the Puritan Revolution, pp. lx-lxiii. the Instrument of Government (xxii, ibid., p. 320), parliaments could not be "adjourned, prorogued, or dissolved without their own consent during the first three months of their sitting." Cromwell construed this as meaning lunar months of twenty-eight days, which was the mode of computing the pay of the army and navy; and dissolved the parliament before the end of three calendar months (Hume, History of England, ch. lxi). 19 Gardiner's Documents, pp. lxiiilxiv.

were known as committees of safety, a name borrowed from the junto of officers who ruled England after the dissolution of the Rump Parliament.20 Even before the Declaration of Independence, the Continental Congress recommended the colonies, in response to the request of some of them, "to call a full and free representation of the people, to establish such a form of government as in their judgment will best promote the happiness of the people and most effectually secure good order in the province during the continuance of the present dispute between Great Britain and the colonies." 21

The first State constitutions were naturally formed in imitation of the frames of government which had been created by and under their charters. Two of the colonies, Connecticut and Rhode Island, continued to use their charters without any change of name, Rhode Island till 1842, Connecticut till 1818. The powers of the executive, legislative and judiciary were still kept distinct. The office and name of governor-except in Pennsylvania and New Hampshire, where the chief executive was called a president, - were retained with a provision for his election by the people or the legislature and with a deprivation of those powers which had been most obnoxious in colonial times. The previous existence of a council and assembly made the step to a creation of two legislative houses natural. The council was usually changed into a senate; 22 and the lower house retained its old name and functions. Two States, however, Pennsylvania and Georgia, besides Vermont, which was not yet recognized, had but a single house. But Pennsylvania had an anomalous and unsatisfactory check on its lower house by a body of censors; executive councils were retained for a while in Pennsylvania, Vermont, Georgia, and Virginia; and Massachusetts has kept till the present day a governor's council as a check on the powers of the executive, besides the senate as a check upon the house of representatives.

20 This English committee is described in Hume's History of England, ch. lxii. The same name was adopted during the French Revolution.

21 This was the recommendation to New Hampshire, South Carolina and Virginia in 1775. Journals I, 231, 235, 279.

22 In

Maryland, Massachusetts, New Hampshire, New York, North Carolina, South Carolina, and Virginia, the upper house was called "The Senate," in Delaware, "The Council," in New Jersey, "The Legislative Council."

The courts were usually continued with their old powers under names from which all reference to the king was excluded; but they had extended their jurisdictions to an extent previously unknown. They had claimed 23 and in at least two cases 24 had exercised the power to refuse to enforce an act of a State legislature as unconstitutional.25

§ 8. Models of the Federal Constitution.

The Federal Convention was composed of men who had been accustomed to rule and legislate in the camp and the senate. They had learned by experience the impossibility of foreseeing the results of untried forms of government, founded on a priori reasoning. They had suffered, not only from the arbitrary power of the crown and Parliament, but also from the imbecility of Congress. They had realized, too, the evils resulting from hasty action by State legislatures unrestricted from making breaches of the public faith and setting aside private contracts. They had acquired by tradition, as well as from the study of "The Spirit of the Laws," that respect for the British Constitution with which Montesquieu had inspired Europe. The superiority of the State constitutions which bore to that a resemblance, over the Articles of Confederation, was of easy recognition. As soon as

23 Commonwealth v. Caton, 4 Call. (Va.) 5, A.D. 1782; Symsbury Case, Kirby (Conn.), 444, 447, A. D. 1785. See the argument of George Mason in Robin v. Hardaway, Jefferson's Reports (Va.) 114, 118, 123, A. D. 1772.

24 Trevett v. Weeden, Rhode Island, A. D. 1786; Chandler's Criminal Trials, vol. ii, p. 69; Thayer's Constitutional Cases, vol. i, 73; Holmes v. Walton, New Jersey, 1780, cited in State v. Parkhurst, 4 Halstead (N. J.), 444; Am. Hist. Assoc. Papers, vol. ii. 45. In Rutgers v. Waddington, Thayer's Constitutional Cases, vol. i, p. 63, an act of the New York legislature was held void by the Mayor's Court of New York, August 27, 1784, because in violation of the treaty of peace. Reference

is made to a Massachusetts case in the

letter by J. B. Cutting to Thomas Jefferson, of July 11, 1788, printed in Bancroft's Constitution, vol. ii, pp. 472, 473. The North Carolina case, Bayard v. Singleton, 1 Martin (N.C.) 42, was decided in November, 1787, after the adjournment of the Federal Convention.

25 This subject will be discussed at length in the subsequent chapters on the Judicial Power. It is treated in The Relation of the Judiciary to the Constitution, by Wm. M. Meigs, American Law Review, March, 1885; Judicial Power and Unconstitutional Legislation, by Brinton Coxe, passim; and Thayer's Constitutional Cases, vol. i, pp. 48-94; and Mr. Justice Gray's notes to Quincy's Reports.

it was determined that the new government should be national in form, they turned for instruction to the description of the Constitution of Great Britain by Sir William Blackstone.1

From his account of the powers of the crown they drew those of the executive, not from the powers actually exercised by George III, when the weakness of his two predecessors had brought the veto power into disuse and laid the foundations of that system of cabinet Government which has since restricted the crown to a mere ceremony; 2 but from those which the king still preserved in theory and which were actually exercised within a century by William of Orange.

3

Some, of whom Hamilton was one, were so disgusted by the

§ 8. 1 Hamilton had the indiscretion to admit this at the time: "I deny the similarity betwixt the present constitution and that of the United Netherlands." "In my most humble opinion, it has a much greater affinity with the government which, in all human probability, will remain when the history of the Seven Provinces shall be forgotten." (Letters of Caesar, by Alexander Hamilton, in The Daily Advertiser, Oct. 1, 1787; Ford's Essays on the Constitution, p. 287.)

2 James Iredell, afterwards a justice of the Supreme Court, seems to have had some appreciation of the functions of the British cabinet. See his Answers to Mr. Mason's Objections to the New Constitution, Ford's Pamphlets on the Constitution, p.

348.

3 Hamilton made no secret of this in private conversation. See the letter of Gouverneur Morris to Ogden, of Dec. 28, 1804: "Our poor friend Hamilton bestrode his hobby to the great annoyance of his friends, and not without injury to himself. More a theoretic than a practical man, he was not sufficiently convinced that a system may be good in itself and bad in relation to particular circumstances. He well knew that his favorite form

was inadmissible unless as the result of civil war; and I suspect that his belief in that which he called an approaching crisis arose from a conviction that the kind of government most suitable, in his opinion, to this extensive country, could be established in no other way."

"General Hamilton hated republican goverment because he confounded it with democratical government, and he detested the latter because he believed it must end in despotism and be in the meantime destructive to public morality." See supra, § 2, note

13.

This testimony by his friend is unimpeachable and is corroborated by Jefferson in his Ana (Jefferson's Works, 1st ed., vol. ix, p. 99), where he reports Hamilton as saying to him, Aug. 13, 1791:

"I own it is my own opinion, though I do not publish it from Dan to Beersheba, that the present government is not that which will answer the ends of society, by giving stability and protection to its rights, and that it will probably be found expedient to go into the British form."

Hamilton himself said, in a pamphlet in defence of the Constitution:"If truth, then, is permitted to

license of the times that they would have established a monarchy if they had had the power. Had Washington been a father, he would have had more difficulty in resisting the temptation to assume the crown which was once at least within his grasp. A few men outside of the Convention, who doubted the wisdom of popular government, advocated the sapient scheme of swearing allegiance to that son of George III, then Bishop of Osnaburg, who afterwards, when Duke of York and Commander-in-Chief, scandalized even those who thought the corruption of the British government its strength, by allowing his mistress to sell the commissions which he signed.5

66

Rumors that the Convention was about to recommend some such folly became so loud that a few of its members felt obliged to answer them. Though we cannot affirmatively tell you what we are doing, we can negatively tell you what we are not doing we never once thought of a king."6

The powers of the upper house of the national legislature were assimilated to those of the House of Lords. Like that it had jurisdiction over the trial of impeachments and could not originate money bills. The House of Representatives was intended as an imitation of the House of Commons. But, though the main lines of the new instrument were copied from a form that had been

speak, the mass of the people of America (any more than the mass of other countries) cannot judge with any degree of precision concerning the fitness of this new Constitution to the peculiar situation of America; they have, however, done correctly in delegating the power of framing a government to those every way worthy and well qualified." (Letters of Caesar, by Alexander Hamilton, The Daily Advertiser, Oct. 17, 1787; Ford's Essays on the Constitution, p. 289.) Under the influence of Madison and Jay, he used more tact when he wrote the immortal numbers of The Federalist.

4 Curtis, in his Constitutional History, vol. i, p. 624, note, quotes a curious letter from Colonel Humphreys to Hamilton, written from New

Haven, Conn., Sept. 16, 1787, which says: "It seems, by a conversation I have had here, that the ultimate practicability of introducing the Bishop of Osnaburg is not a novel idea among those who were formerly termed Loyalists. Ever since the peace it has been occasionally talked of and wished for. Yesterday, where I dined, half in jest, half in earnest, he was given as the first toast." See other quotations by Curtis to the same effect.

5 See A Report of the Evidence and Proceedings upon the Charges preferred against the Duke of York, Albion Press Edition, 1809.

• Pennsylvania Journal, Aug. 27, 1787, quoted by Curtis, Constitutional History, vol. i, p. 626.