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 r. 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.

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

stamped with the approval of time as well as of philosophers, the imitation was not servile. They knew by experience as well as history the mischief in the colonies and the mother country that had been caused by the lack of sufficient checks upon the powers of Parliament as well as the prerogative. They not only adopted the main checks which were a part of the British Constitution, but they took others which had been incorporated in the new State constitutions as well as some invented by themselves. The first Constitution of Massachusetts has a closer resemblance than any other to that of the United States."

§ 9. Compromises of the Constitution.

Compromises are the foundation of the Federal Constitution. The members of the Convention were too experienced in public life to sacrifice the public welfare for a syllogism. They cared nothing for a name when the thing wished could be gained in substance under another term. They were too wise to reject a part when they could not obtain the whole. Their sagacity was excelled only by their patriotism.

7 This, which with some amendments is still in force, was the most carefully constructed State Constitution then in existence. The rejection by the town meetings of the proposed Constitution of 1778, drafted by the State legislature or General Court, because, amongst other things, it did not provide sufficiently for a separation of the three departments, had caused a thorough consideration of the whole subject by the people of the State before the meeting of the Constitutional Convention in 1779, which was chosen for that sole purpose. From this seem to have been taken the clauses in the Federal Constitution concerning the veto power; impeachments; habeas corpus; and the tenure of office of judges. In that also, the upper house of the Legislature was called the Senate and had the power to amend but not to originate money bills; and the lower was the House

Provisions which to the

of Representatives. The same name with different powers over money bills and the power to try impeachments was given to the upper houses in six other States. Supra, § 7, note 22. The name House of Representatives was also then applied to the lower house in the State Constitutions of New Hampshire, South Carolina, Pennsylvania and Vermont. The Journal of the Convention which framed the Constitution of 1780, was published by the order of the State Legislature in 1832. A pamphlet containing a report of the reasons for the rejection of the Constitution of 1778 by a convention of delegates of the towns of Lynn, Salem, Danvers, Wenham, Manchester, Gloucester, Ipswich, Newburyport, Salisbury, Boxford, Methuen and Topsfield, held by adjournment, Ipswich, April 29, 1778, was published by John Michael, at Newburyport, in 1778.

majority seemed beneficial were rejected because it was thought that their express inclusion might endanger the ratification of the plan, while they could under the general language be subsequently established by Congress.1

After the struggle between those who wished a new national constitution and those who were willing only to accept an amendment of the Articles of Confederation had ended in the defeat of the latter, the word "national" was stricken from the paper. Provided that the form was national, they were satisfied that it might be termed federal, even though that name was susceptible of two inconsistent interpretations.2 The names of President and Congress were continued, because used under the Confederation, although the House of Representatives, at least, had no resemblance to a congress of ambassadors, and the new executive did not preside. These, however, were in the nature of concessions to popular prejudices, made voluntarily. Between the members of the Convention were constant differences which more than once threatened a disruption, and were only harmonized by reluctant compromise. The larger States were resolved to cancel the injustice of the Confederation, which placed each of them upon an equal footing. with Connecticut and Rhode Island. Some of their delegates wished to insist upon this at the opening of the Convention,

§ 9. 1 Hamilton's Opinion on the Bank (Hamilton's Works, 1st ed., vol. i, p. 127; Story on the Constitution, § 1268). When the grant of an express power to incorporate a bank was proposed, Gouverneur Morris opposed it, observing that it was extremely doubtful whether the Constitution they were framing could ever be passed at all by the people of America; that to give it its best chance, however, they should "make it as palatable as possible, and put nothing into it not very essential, which might raise up enemies" (Jefferson's Ana, Works, 1st ed., vol. ix, p. 191). So Gouverneur Morris opposed the inclusion of an express grant of power to establish a university, saying: "It is not necessary. The exclusive power

at the seat of government will reach the object" (Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 544). His own proposition of the creation of six cabinet offices was not adopted, undoubtedly for the same reason (ibid., p. 446).

Morris admitted in his letter to Pickering, Dec. 22, 1814, that when he drafted the article on the judicial power, "conflicting opinions had been maintained with so much professional astuteness, that it became necessary to select phrases which, expressing my own notions, would not shame others, nor shock their self love; and to the best of my recollection, this was the only part which passed without cavil" (ibid., vol. i, p. 507).

2 See the discussion of the meaning of the term quoted, infra, § 17.