PREFACE.

AMERICA is sometimes said to be a nation without a past. The remark may mean much or little, according to its application. It is made most frequently in referring to civil institutions. In particular, there has been a tendency to regard the Constitution of the United States as without sources or antecedents, — a new invention in political science.

Mr. Gladstone has observed, that "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." His words, though not necessarily carrying such meaning, have been often quoted as expressive of this old-time idea, that the American Constitution is wholly new, — that it is, in fact, an original creation of the convention which met in Philadelphia in 1787.^[1] What Dr. Von Holst aptly calls the "worship of the Constitution,"^[2] has largely stimulated the idea. The philosophy of modern democracy — which, under the influence of the theories of Rousseau, long ignored historical facts — has steadily cultivated it. And there is in it some truth; for not only was this constitution established as a written document by the convention, and in circumstances quite unique, but it has elements — many of them very important — which are altogether peculiar and characteristic. Hardly strange is it, that such traits of singularity should attract, as points of differentiation usually do, a somewhat disproportionate attention.

But it is beginning to be realized that the Constitution of the United States, though possessing elements of novelty, is not, after all, the new creation that this idea would imply. It is not, properly speaking, the original composition of one body of men, nor the outcome of one definite epoch, — it is more and better than that. It does not stand in historical isolation, free of antecedents. It rests upon very old principles, — principles laboriously worked out by long ages of constitutional struggle. It looks back to the annals of the colonies and of the mother-land for its sources and its explanation. And it was rendered possible, and made what it is, by the political development of many generations of men.

When the preparation of the present work was undertaken, some years ago, there existed no popular recognition of these facts. The tendency was still to regard this constitution as mainly the creation of the Philadelphia Convention; and the scant allusions to constitutional genesis, scattered in American literature, had seemingly left no impression on the general mind. While, however, the work has been in progress, American universities have gradually taken up the study of constitutional sources, occasional articles touching phases of the subject have been published in periodicals, and explicit references to it have found their way into current books, so that public opinion has been ripening.^[3] The path now seems opened for a comprehensive investigation. Yet, down to the present, no volume devoted to the theme has appeared.

The American Constitution is, strictly speaking, the document which goes by that name. The present work treats of the document, and of the sources of its contents, — avoiding all side issues. Whatever influence various European races may have exerted upon American institutions in general, as existing to-day,^[4] the antecedents of this great national document are traceable so directly and so almost exclusively through colonial and English channels, that no apology is necessary for taking such channels as the true line of investigation. The aim has been to place in the hands of scholars and the general public, a clear and concise survey of the salient features of such constitutional evolution.

There may still be persons in America who are unprepared to regard with favour such a study, and who look unwillingly to England or other countries for the origin of institutions they have long been accustomed to consider characteristically modern and American. But surely Americanism can never be more truly American, than when it welcomes, not merely such isolated fragments of fact as differentiate the United States from other nationalities, but every fact, whatever it be, that has to do with the nation; and among these, a most important fact is that of progression from the Anglo-Teutonic past. In reality, the light that comes from historical comparison will be found to give new and heightened colour to the national institutions, and to bring out more clearly than anything else could do, their true meaning and value.

Englishmen and dwellers on the Continent, who often appear to believe that the example of America leads toward a limitless democratic advance, may find in the American Constitution, if they will, a balancing element of conservatism that should not be lost to sight. The American loves liberty, but liberty regulated by precedent and law. In an age when democratic and socialistic theories are threatening the foundations of the political and social fabric of the civilized world, it can scarcely be unprofitable for earnest thinkers to pause and consider, that the great republic possesses in its method of government the result, not merely of a philosophy, but of an historical upgrowth.

And it is proper to observe, that there are Americans who regard with dismay the tendency of those in England who seem in haste to modify or destroy old English institutions, appearing to believe that America sets the example of such destructiveness, and that such a road is the way of progress. England would do well to realize that the American institutions which have proved the most successful have been, very often at least, the working out of ancient English principles of free government. If the case of America is to count for anything, it may count, certainly in some respects, on the side of a careful handling of those old principles. There is many a true-hearted and loyal American who would deplore the spectacle of Englishmen forsaking their own great past.

The author would be justly deemed ungrateful, if he failed to express sincere appreciation of the important aid given him by distinguished legal and historical scholars in Europe and America. Special mention

should be made of the earnest help and interest accorded by the late Sir Henry Maine. Thanks are also due to many kind friends, — among them the Rev. Henry B. Ensworth, who has supplied a number of valuable works; and a lady who has aided materially in the task of final revision for the press. Despite carefulness, the author is fully conscious that he has not improbably fallen into mistakes, — for all which he begs a generous indulgence. He has tried to see the facts clearly, fairly, fearlessly, — and to let the facts tell their tale.

PHILADELPHIA, January 1, 1894.

PREFACE TO THE SECOND EDITION.

THE call for a second edition of this work within a few weeks of the issue of the first is gratifying evidence of public interest in the subject considered. The author avails himself of this opportunity to make clearer, if possible, the position he has taken.

While the reviewers have been united in generous treatment of the book, their opinions have otherwise greatly diverged, — some emphasizing the essential originality of American institutions, and seeking to minimize the derivative elements; and others questioning whether intelligent persons now seriously claim such originality, or fail to recognize the fact of historic development. Of course, each of these views has a portion of truth. For, on the one hand, it is indisputable that this constitution is, in many particulars, an original document; independent volition and conscious creation have entered into its making. And this fact has been a leading theme with American political writers, — so much so that throughout the first century of the republic the tendency was to over-accentuate it. On the other hand, the instrument itself has ever borne internal testimony to its derivative as well as its novel characteristics, and the body of American law has steadily pointed to the beginnings of an evolution. References to the subject in political and historical literature, though much scattered, have never been wanting; and their meaning has found recognition among certain classes of persons, — a recognition which, as pointed out in the former preface, has greatly grown within recent years.

On the main theme the author, of course, claims to have made no new discovery. Rather, as an historian, his task has necessitated, in addition to original research, the using of material drawn from many authorities who have in one way or another, however slightly, touched the subject, — to all of whom he has been careful to make acknowledgment. Nevertheless, the fact that this is the first book devoted to historical exposition of the sources of the Constitution is sufficient evidence, were any really needed by scholars, that those sources have never been adequately considered. As an American by birth and descent, the author has felt it a privilege to endeavour to supply, in some measure, the lack. He has been obliged to accord original treatment to many portions of the theme, which are now brought out for the first time.

The words of Prof. William C. Morey are of much weight: "In tracing the growth of a political system like that of the American States, it is often difficult to separate those elements which are consciously derived from a foreign source and those which are the result of a rational adjustment of means to ends, and which may thus be regarded as original. And it is also often difficult to distinguish both of these elements from those which are the unconscious result of inherited political instincts. Often these elements are mixed, being partly derived and partly original, as when an institution may appear to be the result of direct imitation, when in fact it may be the product of a common race instinct, as in the case of the representative system reproducing itself in all the branches of the Teutonic race. It is also, no doubt, true that heredity and reason may contribute their influences in the formation of a political institution. The law of historical continuity, or political inheritance, is not inconsistent with the law of historical variation, or political originality. In fact, the greater the accumulations of past experiences, the greater will be the capacity to solve by original methods the problems presented by new experiences.... To suppose that the American constitutional system has been exclusively derived from an English, or a Dutch, or any other foreign source, would be to ignore the political sagacity which the American people have shown from the first, both in the adaptation of foreign institutions and in the development of new constitutional features to meet the peculiar circumstances in which they have been placed."^[5]

The question of how far a given institution is original or derived can be answered only by historical research, — and, to be complete, such research must take into account antecedent tendencies and conditions, in addition to merely local and contemporaneous circumstances. When a given institution exists in analogous forms among several portions of the same race, and when it is traceable in essence to a common source in racial experience, the assumption of entire originality for the institution, in any one of the scattered localities where it may be found, is unscientific and historically unsound. Circumstances, which may have led to its revived establishment, should never be confused with the institution itself; for its own identity of traits may be obvious, though the occasion of revival may have been in no two cases the same. While the institutions of the American colonies arose in many instances as if by accident, the fact that the colonies generally agreed in essentials with each other and with the parent nation cannot, of course, be scientifically explained as accidental or as the result of invention.

There is a distinctive tone to American institutions; and a pardonable patriotic pride very naturally tempts Americans to dwell upon whatever differentiates their country from others. But there is no necessary disparagement of this distinctiveness in the fact that what is called American political originality often rests upon adaptation; for civil progress always and everywhere implies an element of novelty, based upon volition as a modifying and creative influence, and can never be simply automatic. Some institutions of the United States are the result of invention. Others, which Americans have inherited and have changed to suit themselves, until an assertion of originality seems justifiable, were not changed for the first time here, but underwent repeated alteration before reaching American soil. Originality in such a sense is part of the whole history of Anglo-Teutonic institutions. Yet it is a characteristic of the race both in England and America that it has never really broken with the past. Whatever of novelty may appear from time to time, there is ever under all the great and steady force of historic continuity.

The present volume, in treating of this element of continuity as affecting the Constitution of the United States, traces the beginnings of things, scattered as they are through many centuries. Institutions thus found are followed from their origins through successive modifications and changes in the Old World and in the colonies. The investigation includes the constitutional action of the newly formed States, so far as that was transitional or bore relation to the national Constitution. A large number of illustrative citations from political and legal writers are scattered through the pages, and chief documents of the constitution-making period are accorded, in whole or in part, a place in the appendix, with the object of aiding studious readers to a comprehensive view of the subject.

There exists in some quarters an erroneous impression that this work was undertaken to controvert the assertion of Dutch origins as made in Mr. Douglas Campbell's current book, the Puritan in Holland, England, and America. In point of fact, the present text was completed before

Mr. Campbell's book appeared. The author has no disagreement with the claim that representatives of various races have exercised a degree of influence on the American nation at large; but he has been obliged to notice some of Mr. Campbell's untenable positions as to the Constitution, in footnotes added on the eve of publication. The aim of the work being independent historical investigation, and not controversial theory, all similar side discussions have been relegated to notes.

Our institutions are essentially Teutonic, and the channels through which the ancient influences have made themselves felt in the Constitution, are conceded to be predominantly colonial and English. The historian of institutions thus held in common by the mother country and our own, can never treat Great Britain as he might properly treat a land of alien peoples. That old land which is the home of our language, and which holds the dust of most of our forefathers, can never be wholly foreign soil. And this is well, — for surely mankind is the better for whatever binds together these two great kindred nations in the love of liberty.

PHILADELPHIA, 1894.

^[1] Professor Morey well expresses this idea: "The organic law under which he [the American] lives is set forth in a written document. It was put into form at a given time and place. It was fashioned in the heat of discussion by a chosen body of men, whose work in its outlines and its details, he is accustomed to think, was solely the product of their creative wisdom. This idea was formerly so prevalent, that the apotheosis of the fathers occupies a large place in American political literature; and this view is not confined to native writers." — Annals of the American Academy of Political and Social Science, April, 1891, p. 530.

^[2] Von Holst, Constitutional and Political History of the United States, I. 65.

^[3] Bryce, American Commonwealth, has some references. Hannis Taylor, Origin and Growth of the English Constitution, gives in the Introduction a brief but lucid outline. Douglas Campbell, Puritan in Holland, England, and America, treats of American institutions in general, but says little of the Constitution itself, and that little is practically limited to the question of Dutch antecedents.

^[4] Recent claims have been made for Dutch, Scotch-Irish, etc.

^[5]"First State Constitutions," Publications of the American Academy of Political and Social Science, No. 9, pp. 2, 3.

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