The Embryo of a Commonwealth

THAT the governments and laws of nations, to be permanent, must result from long years of steady growth is among the most impressive of the lessons of history. Ready-made constitutions, revolutionary empires and republics alike, perish as suddenly as they arise. They cannot withstand the strain of faction or the shock of war. Nothing reaches great age that rushes quickly to maturity.

To this general law, however, there is apparently an exception. The American people are not unusually credited with having suddenly invented the written constitution. And certainly the rapid conception and adoption of this idea in the last century, and the stability which the governments then founded have since shown, may well seem an anomaly in history. Yet such can hardly be the fact, for Americans are subject to the same general laws that regulate the rest of mankind; and accordingly, in point of fact, it will appear on investigation that they have worked out their destiny slowly and painfully, as others have before them; and that, far from cutting the knot of their difficulties by a stroke of inventive genius, they earned their success by clinging tenaciously to what they had. Their political genius did not lie in sudden inspiration, but in the conservative and at the same time flexible habit of mind which enabled them to adapt the institutions they had known and tested as colonists to their new position as an independent people. The germ of the written constitution is very ancient, and appears to have existed at the dawn of English history; and the process by which this germ has developed, with the lapse of ages, into the organic law of the American republics is a most curious and interesting example of the growth of political and legal conceptions.

The Middle Ages were times of violence. Speaking generally, oppression was the accepted condition of society, and no man not noble had the right in theory or the power in practice to do anything he might want to do, without the consent of his feudal superior. When such a state of things exists, the only hope for the weak is to combine ; and so it has resulted that pretty much all the early triumphs of freedom have been won by combinations of commons against some noble, or by combinations of nobles against a king.

For the peasantry, indeed, such combination has always been difficult; but it was easy for the burghers of the towns who were harassed by the neighboring barons, and from the outset they seem instinctively to have united for their common defense, and thus was born the mediæval guild.

Generally there are but two ways in which men can get from others anything of value. They can light for it, or they can buy it. Apparently the ancient townsmen were not commonly strong enough to take what they wanted by force, though, to do them justice, they not infrequently tried the experiment, so they usually resorted to purchase; they agreed with their lord upon a price which they were to pay for a privilege, and in return for their money received a grant, which, because it was written, was called a charter.

The following charter of the Merchants’ Guild of Leicester is very early, and, of course, in very simple form. Yet it is interesting, for it shows that the corporation of Leicester existed at the Conquest, and must have held property in succession, made contracts, and been liable to suit, through two reigns. It presupposes that there could be no doubt as to the customs of the town, which are therefore not enumerated.

“ Robert, Earl of Mellent, to Ralph, and all his barons, French and English, of all his land in England, greeting. Know ye, that I have granted to my merchants of Leicester their Guild Merchant, with all customs which they held in the time of King William, of King William his son, and now hold in the time of Henry the King. Witness

“ R. THE SON OF ALCITIL.”

Such was the ancient charter. The corporate existence was recognized, and that was all. But, necessarily, the early like the modern corporation must have had succession, the power to sue and be sued, to make contracts, and to hold property. These functions were always exercised as a matter of course. It was not till after several centuries that lawyers learned, by observing these customary companies, what powers were necessary for every such association. Gradually, as time elapsed, the charter grew more elaborate; until at last it came to pass that the existence of no new corporation was recognized unless it received from the king a written grant of every power it was to exercise. Thus it has always been with the common law. A custom grows up from the needs of the people, this custom is recognized by the courts, then the custom is forgotten and the rigid rule of law remains, which in its turn is modified by legislation. Still, many prescriptive corporations exist in England, the most remarkable among them being the city of London, which, though it has received innumerable charters from different kings, has never been regularly incorporated by any single grant.

A word or two is necessary about the Merchants’ Guild which was granted by the Earl of Mellent to his merchants of Leicester. It was an association of the townsmen to promote their common welfare. All traders were called merchants in those days; and traders were almost necessarily land owners, to the extent at least of their own dwellings. Thus, at first, the guild seems to have practically included all the townsmen, and the guild hall became the place where town business was transacted; thus, gradually, the guild corporation became the town corporation, and the recognized government of the borough. The town hall of London, for example, is still called Guild Hall. The guild was originally a popular institution; but in the course of centuries its character changed. Membership became a valuable privilege, and grew to depend on birth, purchase, marriage, or election ; so that at last the corrupt condition of these corporations, possessing as they did the right of returning members to parliament, actually threatened a revolution in England, and culminated in the agitation which led to the Reform Bill.

As it was with the merchant guild, so it was with the craft guild. Each trade banded together for its own protection, — the weavers, the grocers, the mercers, the goldsmiths, the tailors, and so on through the whole list; and they too, from being popular associations formed to protect the weak against the strong, became by degrees an aristocracy as oppressive as that which they were originally meant to resist.

It is beside the object of this article, however, to go into the history of mediæval guilds and boroughs, interesting as the subject is. What we are concerned with is the trading company, which was an offshoot of the guilds, and intended to give protection to Englishmen trading abroad. Obviously, some such association was necessary ; for if property was insecure within the realm, it was far more so without. Indeed, the position of English merchants of the fourteenth century domiciled on the continent was not unlike, so far as safety goes, that of those Europeans who now garrison the so-called factories upon the coast of Africa.

It is impossible to learn when such companies were first established. At the Conquest, the Hanse merchants had a house in London, which afterward became famous as the Steel-Yard. These Germans lived a singular life, a mixture of that spent by the trader, the soldier, and the monk. Their warehouse was a fortress constantly exposed to attack by the ferocious mob, and occasionally taken and sacked. Shut up within, they were subject to a discipline of more than military rigor. Not only were they forbidden to marry, but they were never allowed to pass a single night without the gates, nor was any woman, even a servant, permitted within the walls. For many years they appear to have pretty much monopolized the carrying trade; in later days they became a recognized guild of London, had their hall, and took part in the city shows ; it was not till the end of the thirteenth century that Englishmen seem to have had the enterprise to attempt foreign commerce themselves.

About 1296, certain London mercers are said to have obtained a grant of privileges, from the Duke of Brabant, and to have established a wool exporting house at Antwerp. Obviously, the permission of the Flemish government was necessary to enable them to trade in that capital,but it seems hardly possible even at the outset that they could have maintained themselves without some kind of recognition from the authorities at home.

Although domiciled abroad, they were English merchants, and they must have relied principally upon the protection of England and English law. No very early documents remain by which this fact can be proved, but the elaborate charter granted in 1463 by Edward IV. shows that the company had been recognized as a corporation for many years previously. In it the king confirms the existing governor in his oifice, and also the laws and regulations then in force. He gives the governor and company jurisdiction over all merchants and mariners trading to those parts, and empowers them to regulate the trade and exercise control over the traders. In fact, the same revolution had taken place here as in the guild. The company had been organized, for mutual protection, by all the Englishmen who sailed to Flanders with merchandise, and every man who chose to join was welcomed as a member, since numbers added to their strength. Once established and strong enough to feel secure, the popular brotherhood, which had now taken the name of Merchant Adventurers, became a monopoly, claiming exclusive privileges, restricting its own numbers, and ruthlessly oppressing outsiders. How intolerable their rule became is shown by a curious petition which was presented to Parliament in 1497. It was a protest against the exactions of these Merchant Adventurers, and alleged that the company made all outsiders trading to Holland and Flanders pay a fine of £40 (a large sum of money in those days), whereas by their first charter, which the petitioners stated was granted in 1406, any one might join the fraternity by paying one old noble or about 6s. 8d. Whereupon Parliament seems to have made a compromise, as usual, and enacted that in future no trader should have to pay more than 10 marks, or £6 13s. 4d.

During the Middle Ages all society tended strongly toward aristocracy and monopoly, and trading companies shared in the general movement. The world moved slowly. We can hardly realize how little change a century wrought in public institutions, or in habits of life, five hundred years ago. Supposing the Merchant Adventurers to have been organized about 1300, no other company comes into notice till near 1400, during which time also no trace remains of the progress of the Adventurers themselves. The sixteenth century, however, was at hand. With it came the great awakening when Europe broke into new life, and the world was shaken with a new energy. Trade shared in the impulse, and fresh enterprises were started on every side.

In 1554, Philip and Mary incorporated the Russia Company in regular modern form, with all the technical legal verbiage. In 1581, the Turkey Company was organized. In 1599, that greatest of all trading enterprises, the East India Company, received its charter ; and, to come directly to what concerns us, in 1628, or the fourth year of King Charles I., the Governor and Company of Massachusetts Bay in New England came into existence.1

The company of Massachusetts Bay was organized in the form of a trading corporation, just as the Merchant Adventurers, the Turkey, or the East India Company had been organized. This as a legal proposition does not seem to be open to dispute.2 At the same time, nothing can be more certain than that the enthusiasts who settled at Boston came to America with no idea of gain. They came here, on the contrary, abandoning all worldly advantages, to found a religious republic, in a land so far from England that they thought themselves unlikely to be disturbed. Nevertheless, the form in which the British government gave its sanction to their emigration was as an association of Englishmen going to a foreign country for the purpose of trade, and taking with them the authority necessary to enforce order among themselves, just as the Merchant Adventurers had done centuries before in Flanders, and as the East India Company was then doing in Hindostan.

Nobody can doubt this fact who will make a very slight examination of the old charters, which vary from one another only in details, and are evidently drawn up upon the same model. How the lawyers of that day viewed the question is also quite clear. It was the duty of the law officers of the crown to draw up a short memorandum of the substance of any document needing the king’s signature, so that he might know what was before him. This memorandum was called the king’s docket, and was attached to the instrument. The material portion of the king’s docket of the Massachusetts charter is as follows : —

“ Incorporating them also by the name of the Governor and Company of Massachusetts Bay in New England in America, with such other clauses for ye electing of Governors and Officers here in England for ye said Company, and powers to make laws and ordinances for settling ye government and magistracy for ye plantation there, and with such exemptions from Customs and Impositions and some [such ?] other privileges as were originally granted to the Councell aforesaid and are usually allowed to Caporacons in England.”

The docket is signed by the solicitor general, Sir Richard Sheldon. His opinion is therefore clear enough. He advised the king that the charter submitted to him was one in ordinary form, incorporating a company in England who proposed to establish plantations or trading posts in America for commerce, just as other merchants were then establishing them in India, or like those afterward built by the Hudson Bay Company.

It was because their position was legally false that the colonists fell into most of their political difficulties with the authorities at home. As already pointed out, their object was to establish a religious republic in America. The king, however, had sanctioned nothing of the kind, and it is at once interesting and instructive to contrast the machinery with which they had provided themselves with that which they were actually compelled to use.

The machinery of the charter is simple, and comes to little more than this: The general court of the company, which was composed of the freemen, or, in modern language, stockholders, was to meet once a quarter; and this general court was empowered to choose the governor and assistants (president and directors), and pass such laws as were necessary for the prosecution of the objects of the corporation, that is, for the regulation of their business and the maintenance of order at their factories in America, as the Merchant Adventurers had been doing for centuries.

This was the extent of what they were legally empowered to do. What they actually did do, and indeed what circumstances forced them to do, was something quite different and altogether more comprehensive ; and by exceeding their legal powers they worked a forfeiture of their charter at the outset.

Blackstone says (vol. i. p. 485) : “ A corporation may be dissolved by forfeiture of its charter, through negligence or abuse of its franchises ; in winch case the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the incorporation is void.”

Almost at once the colonists committed a flagrant breach of law. They found that it was impossible to keep up even a form of government in England, and boldly decided to take their charter to America. The object, of course, was to get rid of the supervision of the government and of the courts. But such an act was evidently contrary to the whole theory and spirit of the law, which was to keep the imaginary being within the jurisdiction which gave it life and whose power supported and at the same time controlled it. Although in one sense even then the American wilderness may have been held to have formed a part of the British empire, it certainly was not such a portion of the realm of England as to be within the regular jurisdiction of the courts, or to have any analogy to an English county.

Though neither English judges nor lawyers ever seem to have had any serious doubt that the removal of the charter to New England worked its forfeiture, yet that act was one of the smallest of the usurpations of which the company had been guilty ; indeed, it is hardly going too far to say that it had paid no attention to the law whatever. The general court ought to have been a meeting of the free-men, or, as we say, of stockholders ; they turned it into a representative assembly, whose only point of resemblance to the thing they were authorized to maintain was in the name, which has thus descended to the Massachusetts legislature. They went on to incorporate towns and counties. They invented a strange criminal code founded on the law of Moses, not then recognized in Great Britain, in which they made a number of odd offenses capital. They even coined money And for none of these things was there a shadow of legal sanction. Thus when the scire facias came on for hearing in 1684, the chancellor had no hesitation in annulling the charter, and his law was unquestionably good, though the motive that actuated him may have been political.3 Yet singularly enough, while at every turn the colonists found themselves forced by events to disregard the terms of their charter and to act in defiance of its evident meaning, they held it in almost superstitious reverence, so much so that they clung to the parchment on which it was written, after it had become void by a judicial decree, as though the possession of the scrap of paper was a matter of grave importance, when the vital principle was dead. But so much did they prize it that they never would part with it; and it hangs to this day in the State House in Boston.

By the revolution of 1688, England liberalized its government. Certainly William III. was not inclined to interfere unnecessarily with his subjects, yet he was no more disposed than a Stuart to restore the old state of things. Nor would such a policy have been statesmanlike. The time had come to end the old pretense of a trading company, and deal with existing facts. A large colony had grown up in Massachusetts, whose institutions ought long before to have been recognized and regulated by law. Besides, unless Great Britain was prepared practically to abandon all control over this part of her empire, something had to be done to sustain her authority. Some supervision had become necessary over legislation, and appeals from the courts had to be entertained. It was necessary that England should be represented by an officer powerful enough to be respected, who could regulate in some degree the action of a people whose most marked characteristic was not docility.

Accordingly, in 1691 the king granted the second or provincial charter, which remained in force till the Revolution. It is in some respects a very remarkable example of how tenaciously ancient forms survive their usefulness and their meaning. The venerable formula of incorporation was scrupulously followed with its endless and then absolutely unmeaning verbiage, but though the old shell was left the spirit within was modern. The provincial charter bridges the gulf between the Middle Ages and our own times. The great change had come; the new instrument, though still in form a charter of incorporation, was in fact a written constitution of government, such as now exists in the United States. It was less elaborate than those drawn subsequently, it is true, but the pervading principle is identical.

The executive was the governor, who was appointed by the crown, though his pay was fixed by the legislature. The legislature was a regular representative body, with powers almost identical with those since granted by the people to the general court of Massachusetts. Its members were elected by the towns. The appointment of judges was provided for, who were to preside over courts to be established by the legislature. Provision was also made for a militia and a police.

In short, the figment of a trading company had vanished, and in its place England gave to its colony a written instrument of government to serve for the fundamental law of a democratic republic. It was a first attempt, and therefore somewhat crude. The balancing of the three departments against each other was not understood, and perhaps was not necessary where the executive drew its power from another source than the people ; yet it was well adapted to its purpose. It was deeply venerated by the people, who, at the Revolution, seem never to have thought it possible to get on without it, or at least something like it to take its place. They thought, however, it might be improved, and they therefore held a convention to redraft it. They cut out the antiquated form of incorporation ; they separated as completely as they could the executive, legislative and judicial departments ; they omitted portions that displeased them, and added a bill of rights, of which they had felt the need. Then, as they no longer owed allegiance to the king, who had formerly been the grantor, they granted to themselves by a popular vote their new charter, which they named a constitution.

An extract taken almost at random will show how closely the convention followed their model, even to adopting the exact words where it was possible to do so.

POWERS OF THE GENERAL COURT.

CHARTER.

And we do further, for us, our heirs and successors, give and grant to the said Governor, and the Great and General Court or Assembly of our said province or territory, for the time being, full power and authority from time to time to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions, either with penalties or without (so the same be not repugnant or contrary to the laws of this our realm of England), as they shall judge to be for the welfare of our said province or territory, and for the government and ordering thereof, and of the people inhabiting, or who shall inhabit the same ; and for the necessary support and defense of the government thereof.

CONSTITUTION.

And further, full power and authority are hereby given and granted to the said General Court, from time to time to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions, either with penalties or without (so as the same be not repugnant or contrary to this constitution), as they shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof, and of the citizens of the same, and for the necessary support and defense of the government thereof.

The necessary changes were in truth very slight, so slight that Rhode Island and Connecticut thought their colonial charters good enough, and kept them in force for many years after the establishment of the federal government; and no one needs to be told that as the constitution of Massachusetts was the first to be adopted, so it served more or less as a model for those that came afterward, including that of the Union. Such is the history of the written constitution, from its germ in the ancient charters of the mediæval guilds, through the era of the trading company and the phase of colonial charters, down to its latest development as it now exists, — the fundamental law of the American republics.

It is worth while to pause for a moment to realize the startling difference in the destinies of those two great enterprises, begun so nearly together, the East India Company and the Company of Massachusetts Bay. The spirit in which they were organized differed widely, it is true, for the one was really what it pretended to be, a venture by English merchants in the East ; while the other was an emigration of fanatics, who, far from seeking their fortunes in the West, were abandoning all worldly wealth in the hope of finding a spot in the wilderness where they would be able to carry out undisturbed their own peculiar notions of theocratic government.

Still, though the motives that actuated these two bodies of men were wide asunder as the poles, their legal position was identical. They were both corporations before the law, and if they both founded empires, some similar development of constitutional principles might not unreasonably be anticipated in the two states. Nothing of the kind has happened. Planted on different continents, under different climates and in different soils, they have borne strangely different fruit. The one in Asia, ruling a subject and inferior people, soon became a pure military despotism, so far as its subjects were concerned; and when at last it perished under the weight of its own conquests, it left to England a vast empire whose only constitution or law is the will of the master race. The Massachusetts company, on the contrary, starving on the sterile and bleak New England coast, and composed of men of stern and courageous nature, was destined to foster the purest democracy the world has ever seen, and at last to provide, by its traditions and its laws, the foundation upon which the American Union rests.

There still remains to be told a most interesting portion of the history of the development of those constitutional principles which are peculiar to the United States, — the process by which the courts acquired the jurisdiction they have always exercised of acting as interpreters of the organic law, and of holding void statutes passed by the legislative department of the government that, in the opinion of the judges, conflicted with its meaning.

It is evident that from the earliest time there must have been some one to pass upon the abuse of corporate privileges. Towns or guilds could never have been allowed to use their powers in any way they chose without restraint, and the way in which society could most readily protect itself was by taking away the franchise it had granted. Thus, for example, the Plantagenets were constantly, upon one pretext or another, revoking or suspending the franchises of London, often, no doubt, with justice, but sometimes for the purpose of reselling them. And as it gradually became clear that charters, to be worth the having, must be beyond the power of the grantor, it came to be established as law that the king could not rescind his own grant. So by degrees the judges assumed the entire jurisdiction over these questions, and if for any reason the government wished to annul a charter, the attorney-general began proceedings in the courts. But judicial regulation could not stop here, as a moment’s reflection must show. A man may be made responsible in his own person, all his contracts may be held binding on him, and yet society may protect itself by punishing him if he breaks the law, although in point of fact there are many contracts that no man is allowed to make. Corporations stand on a different footing. Citizens are permitted to associate together and act like one being for certain purposes clearly stated in their charter. If instead of using their privileges for these purposes they undertake something entirely different, it is clear that they act beyond the law, in defiance of the power that gave them life, and that the act is void. Otherwise corporations might do anything that seemed likely, in the opinion of the members, to promise profitable results. The proposition seems clear enough, but it opens a vast field for controversy ; for there are no questions on which men are more apt to disagree than whether a given act is fairly within the scope of a grant. And from the earliest times controversies of this kind have arisen. There is a curious case reported in the Liber Custumarum, vol. i. pp. 416—424.

In 1321, the Loudon weavers were alleged to have passed certain by-laws intended to raise the price of cloth, and therefore injure the public, by limiting the number of working days, the length of the working day, and the number of apprentices that the members of the guild might take at once. They were accordingly indicted for abuse of their privileges, and a jury having been impaneled, a trial was had. The jury found the truth of a number of the charges, but the upshot of the process does not appear, as the roll breaks off in the middle of the record.

With English companies established in distant and oftentimes barbarous countries, the danger to be apprehended from usurpations of power was necessarily much more serious than with those at home ; because from the nature of things they were obliged to deal with more serious questions. Not only did their officers have to administer both civil and criminal justice within their own territory, but they might be obliged to make war or negotiate treaties. So from the very beginning, although it would seem plain that corporate laws passed contrary to the intent of the charter must be worthless, and that any law contrary to the law of England must be contrary to the charter, it appears to have been customary to guard especially against improper legislation.

For example, Edward IV. granted a charter to the Merchant Adventurers in 1463, authorizing the governor and merchants to meet and elect twelve justices who were to hold courts; he then confirms the existing laws which the governor had approved, but expressly forbids the passing of any laws contrary to the intent of the charter, providing that such legislation should be null. In like manner the East India Company might make all reasonable laws, constitutions, etc., agreeable to the laws of England. And the general court of the Governor and Company of Massachusetts Bay could make all manner of reasonable and wholesome laws, statutes, etc., not contrary to the laws of England.

No explanation is necessary, therefore, to show that, whenever a case arose which turned upon some law or regulation of one of these companies, it was open to the parties to the litigation to set up that the act in question violated the charter and was void ; and, of course, the judges had to rule one way or the other. The same provision was inserted in the charter of William III. to Massachusetts, and it would be reasonable to presume without investigation that cases must have arisen before the Revolution which involved the constitutionality of colonial legislation. In point of fact, several important cases did arise at quite an early date. The most striking of these was Winthrop v. Lechemere, which was in Connecticut, it is true, but that is immaterial, as the legal situation of the two colonies was in this particular identical. Waite Winthrop died in 1716, leaving two children, John and Ann, wife of Thomas Lechemere. John took out administration and divided the personal property, but took to himself the entire real estate, as the heir of his father, instead of allowing a division as the colonial statute required. In 1724, Lechemere, in right of his wife, applied to the probate court of Connecticut for administration of the whole estate of the deceased, both real and personal. After much litigation, and an appeal to the Assembly in 1725, the Superior Court held that real estate should be inventoried and distributed like personal property, in conformity with the statute. Thereupon Winthrop appealed to the Privy Council in England; where, after argument, this decision was reversed, and the statute of distribution was held void as contrary to the charter and to English law.

The Connecticut legislation was copied from a similar law of Massachusetts, and had been in force since 1699. The success of Winthrop in this appeal probably induced a similar attempt in Massachusetts, for in 1737 the same point was raised in Phillips v. Savage, but the colony managed to manipulate the council in such a manner as to obtain a favorable decision. The decision in Winthrop v. Lechemere remained unshaken for seventeen years, during which time the greatest confusion and uncertainty prevailed in Connecticut in regard to the settlement of estates, until at last, in 1742, the colonial government succeeded in obtaining a reversal in Clark v. Tousey, after a continuous struggle throughout the entire interval.4

At the outbreak of the Revolution, the supervision of the English courts was removed, but the people having either retained their old charters, or granted themselves new ones in the shape of constitutions, the same questions must have arisen after the independence of the colonies was established as while they formed part of the British empire, the only difference being that the court of final resort was the highest court of each State, and not the Privy Council, to which an appeal no longer lay. A good example occurred in Rhode Island in 1786, three years before the adoption of the national constitution, Rhode Island at that time still carrying on its government under its colonial charter. The case was this : One Trevett having bought meat of Wheeden offered in payment a legal-tender bill of the State. By statute any person declining to receive these bills in payment of debts was liable criminally upon summary trial without a jury. Upon argument, the judges held the act unconstitutional, as contrary to the charter.5

Thus, when the constitution of the United States was adopted, the whole theory of the province of the judiciary as interpreters of that instrument was almost as well understood, if not altogether so firmly established, as it is now. Nowhere is the doctrine more clearly stated than by Hamilton in number 78 of the Federalist.

“ A constitution is, in fact, and must be regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be irreconcilable variance between the two, that which has the superior obligation . . . ought to be preferred.”

From its organization the Supreme Court has sustained Hamilton’s view,

which was the view taken of their duty by the judges in the various States; though it is sometimes spoken of as if it were a discovery, or at least an original theory, of Chief Justice Marshall. No error could be more profound than to suppose it originated with him. The doctrine was laid down at the New York circuit only three years after the federal government was established, and it was supported by at least one eminent justice in an elaborate opinion given in a great cause which was argued shortly afterward before the full bench. Thus, when at length the question came up for actual decision in 1803, in Marbury v. Madison, the chief justice seems to have considered his opinion rather as a solemn declaration of what was already received as law than as advancing anything new.6

It is true that the court has not established its jurisdiction without opposition. Its claim to entertain appeals from state courts in matters touching the federal constitution, and to be the final tribunal for passing upon the constitutionality of congressional legislation, has not been conceded without a bitter struggle, even if the latter branch of the controversy can yet be said to be ended. But the actual relation of the judiciary to the legislature in the United States is too large a subject to be treated within the limits of this article. My purpose is accomplished if I have succeeded in showing that the governments and institutions of the American people are not the ephemeral growth of a moment of revolution, but that they are the offspring of a history aud tradition as ancient as those which have moulded the common law, and upon which rests the fabric of the British empire.

Brooks Adams.

  1. Massachusetts is chosen because for my purpose some one colony must be taken as an example, and Massachusetts happens to be the most convenient.
  2. See a very able paper by Mr. Charles Deane, published in Proceedings of Mass. Hist. Soc.. Dec., 1869, p. 173, in which the point is demonstrated.
  3. The original writ of quo warranto brought by Sir John Banks in 1635 was abandoned, and final process was by scire facias. Palfrey, vol. iii. p. 390, note. See the able paper by Mr. Deane on the Charter, Memo. History of Boston, vol. i. p. 329. Also Story on Constitution, Book I. § 66.
  4. Conn. Col. Records, vol. vii. p. 191, note. Proceedings of Mass. Hist. Soc., 1860, 1862, pp. 64-80, 165-171.
  5. Trevett v. Wheeden, 2 Chandler’s Criminal Trials, 270. See also Bayard v. Singleton, 1 Martin, 48.
  6. See Hayburn’s Case, 2 Dal. 409. Opinion of Iredell J. in Chisholm v. Georgia. 2 Dal. 419. Opinion of Marshall C. J. in Marbury v. Madison, 1 Cranch, 137.