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The Constitution of the United States · Chapter 2The Revolt Against Authority (1)

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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."