An American History of the English Constitution

THE increasing interest in the study of American history has in the course of the last ten years become quite remarkable, and, so far as one can judge from present indications, that interest is likely to grow still deeper and wider. In all probability it is not a mere transient mood or fashion, but a symptom of the beginning of a new era of awakened national consciousness and historic consciousness. We are beginning the better to understand what our national existence means, as we decipher more clearly the secrets of the past out of which it has emerged. Our increased interest in American history is part of our more intelligent comprehension of the true aims and methods of historical study in general. Sinee the middle of the present century, the study of history has undergone a change as remarkable and significant as any of the changes which have affected at the same time the study of the physical sciences. A hundred years ago, history was for the most part either dry annals or a collection of anecdotes. In the hands of Gibbon it became a magnificent epic. In the hands of Voltaire it was enriched with wise and witty maxims of general applicability. But of history as the record of an orderly development there was scarcely a suspicion ; and the historic perspective of even the greatest writers of that time seems now quite barbaric and grotesque, like the perspective on a Chinese plate.

In the first half of the present century, the conception of history as a record of the evolution of civilization out of barbarism had been reached by some able writers, — perhaps by philosophers sooner than by professional historians. The first shape which this new conception took was that of brilliant and plausible generalizations from some of the more salient facts of history, such as Comte’s “ law of the three stages ” and other “laws” expounded in the fifth volume of his Philosophic Positive. The last considerable work of this superficial period was Buckle’s History of Civilization, — a book whose gross deficiencies were partially atoned for by its aggressive energy and stimulating suggestiveness. Neglect of sources and origins, disregard of what would have been called “ trivial ” facts (for example, the old English frithborh, or other barbaric customs), marked this period of historical writing. There was a disposition to look upon political constitutions as something fixed, and such differences in political habit as those between Englishmen and Frenchmen were at once disposed of by a glib reference either to “ climate ” or to “race.”

During the past fifty years the study of history has been characterized by : (1) a growing recognition of the fact that the social phenomena of any age are naturally evolved from the social phenomena of the preceding age ; (2) a habit of going always to original sources ; (3) a respect for all facts, however humble, and a readiness to follow every clue, however seemingly inadequate. In this way we have come to recognize the unity of history, and to learn how to use the comparative method. In the hands of such writers as Sohm, Brunner, and the Maurers, in Germany; Coulanges, in France; Kemble, Freeman, Stubbs, Maine, and Green, in England; and Lewis Morgan in America, historical studies have come at length to yield golden fruit. The course of political development throughout the recorded past, and for some extent back of it, is beginning to be understood. Profound differences between nations are seen to be producible by the cumulative effects of small differences in local institutions. Facts once deemed trivial are now regarded as of critical importance, just as, for studying certain problems, the botanist may find a despised weed more helpful than the most superb rose.

For these reasons, American history is coming to possess an absorbing interest for those who study it in the modern spirit. It is the history of the transplanting of a vast and complicated mass of ancient political institutions from the Old World to the New. Nothing can be more instructive than to trace the features of their marvelous development under the new conditions. No subject which we can study is more full of practical lessons than American history ; but there is also no subject which stands more in need of antiquarian research in order to make it comprehensible. Fifty years ago, the first of these statements would have been complacently accepted by all good Americans ; the second would have been received with wondering ridicule. In those days no such book as that of Mr. Hannis Taylor would have been possible.¹

Mr. Taylor’s book is concerned primarily with the government and institutions of England; but in his admirable Introduction, of seventy-nine pages, he has undertaken “ to emphasize the fact that the constitutional histories of England and the United States constitute a continuous and natural evolution which can only be fully mastered when viewed as one unbroken story.” In this preliminary exposition, he shows, from a comparative survey of ancient and modern commonwealths, the distinguishing features of the typical English state, which is the political unit in our federal system. Next comes a brief sketch of the growth of the English kingdom, with especial reference to the firm establishment of representative government in England, so that it survived there, while in the other great countries of Europe it died out, so that when introduced in France and elsewhere since the overturning in 1789 it has been necessary to copy it from England. There follows a very interesting comparative survey of the American colonies, their local institutions, the sources of their theory of colonial rights, and its inevitable divergence from the British theory, until separation of the colonies from Great Britain came as a natural result. The germs of federalism among the American colonies are then described, and the work of the great Federal Convention of 1787 is analyzed. In going over this old and familiar ground, the author shows on every page the fresh suggestiveness which comes from a remarkable breadth of view combined with a minute and accurate knowledge of details.

Of especial interest, among other things, is the way in which he traces the process of thought which resulted in the one institution that may truly be said to be peculiar to the United States, the federal Supreme Court. “ It has ever been.” says Mr. Taylor, “ an elementary principle of American constitutional law that every state legislature is endowed, by its very nature, with the omnipotence of the English Parliament, save so far as that omnipotence is restrained by the express terms of constitutional limitations, — an American invention which rests upon the doctrine of the sovereignty of the people as distinguished from the sovereignty of Parliament.” The American reader should here be on his guard, as the author does not sufficiently guard him, against the interpretation that our British cousins differ from us in not recognizing the sovereignty of the people as over and above Parliament. The final decision of the Wilkes case, in 1774, settled that the lights of constituencies cannot be abridged by the House of Commons; and whenever a vexed question arises, upon which it proves impossible for Prime Minister and Parliament to agree, the dissolution of Parliament, with the ensuing new election, is simply an appeal to the sovereign people to decide the question. The difference between the United States and Great Britain is not in the fundamental doctrine, but in the way in which the doctrine is asserted. In America, as Mr. Taylor says, it is through explicit documentary limitations. “ Such limitations naturally arose out of the process of historic development through which American legislatures came into existence. From the very beginning the powers of the colonial assemblies were more or less limited through the terms of the charters by which such assemblies were either created or recognized.” In the colonial times, as Mr. Bryce has pointed out, “ questions sometimes arose . . . whether the statutes made by these assemblies were in excess of the powers conferred by the charter; and if the statutes were found to be in excess they were held to be invalid by the courts ; that is to say, in the first instance, by the colonial courts, or, if the matter was carried to England, by the Privy Council.” The colonial legislature established by charter could do everything except “ violate the terms and transcend the powers of the instrument to which it owed its existence.” During the colonial period, the power whose will was expressed in the charter was the British government. After the separation from Great Britain, that power was the people of the independent American commonwealth. The legislature, never a supreme body, was limited thereafter by a written constitution, as it had before been limited by a written charter. Mr. Taylor refers to the famous case of Trevett v. Weeden, decided in Rhode Island in 1786, as probably “ the first case in which a legislative act was declared void by reason of repugnance to the principles of a state constitution.” That state constitution itself happened to be the colonial charter of Rhode Island, granted in 1662, and not superseded until 1842. From this peculiarly American system of constitutional limitations upon the legislative power there grew, naturally, the brilliant conception of our federal Supreme Court, which, as Sir Henry Maine says, is “ a virtually unique creation of the founders of the Constitution.” Mr. Taylor is right in saying that “ judicial tribunals have existed as component parts of other federal systems, but the Supreme Court of the United States is the only court in history that has ever possessed the power to finally determine the validity of a national law.” Not only has this great court rendered inestimable service in building up the federal power, in checking its undue encroachments upon the States, and in harmonizing the relations of the States with one another, but, moreover, since the jurisprudence by which its proceedings are regulated is English jurisprudence, “ it has become a new fountain not only of federal, but of English law.”

After his interesting and suggestive Introduction, our author goes on to treat of the Old English Commonwealth, the Norman Conquest, and the Growth and Decline of Parliament, ending the volume at the accession of Henry VII. In this historical survey he follows Stubbs and Freeman quite closely. Perhaps he does not make many points which have not, in one way or another, been mentioned or hinted at by these authors. But, in truth, so far as English history is concerned, Stubbs and Freeman now stand at the head of the stream of investigation and interpretation, just as Spencer and Darwin stand at the head of the stream in all that concerns biology and evolution. Whatever comes down stream, they must, of course, have had a hand in it. Mr. Taylor’s relation to the great masters is by no means that of a servile copyist. He has himself made a careful study of original sources. In his discussions of special points he shows a thoroughly critical spirit, and his extremely lucid arrangement would of itself suffice to make his book one of original value. The only formal defect in it is the occasional detailed repetition of an argument where it comes to be used in a new connection, and where a briefly allusive reference would be quite enough for the intelligent reader. Throughout the book, even where the bearings of the subject upon American history are not explicitly mentioned, there is a certain fresh suggestiveness arising from the very fact that the author is an American, and has in mind illustrations such as would not so readily occur to any but an American.

Especially to be commended are the sections or passages which describe the influence of Christianity in promoting the coalescence of the so-called heptarchic kingdoms into the English nation ; the effects of the Norman Conquest upon central and local organization respectively ; the differentiations of the curia regis ; and the development of the itinerant judicature and of trial by jury. The early forms of taxation, — as hidage, carucage, and talliage, — with the origin of indirect taxation, and the connection between taxation and representation, are also very clearly and judiciously treated. The constitutional history of the period which saw the deadly struggle between York and Lancaster is set forth so lucidly as to make the book a valuable help in a special study of that period. Indeed, this first volume is so well done as to make us impatient to see the second. In the Tudor and Stuart periods, and their relations to the beginnings of American history, in the divergent growths of English institutions in the Old World and the New, and in the origin of our federal system, there is a rich field, in which our author’s methods will be sure to work to advantage.

In conclusion we must express our satisfaction that a book so thoughtful and solid should come from Alabama, in illustration of the rapidly growing interest in historical studies in our Southern States.

1. The Origin and Growth of the English Constitution. An Historical Treatise, in which is drawn out, by the light of the most recent researches, the gradual development of the English constitutional system, and the growth out of that system of the Federal Republic of the United States. By HANNIS TAYLOR. In two parts. Part I. The Making of the Constitution. Boston and New York: Houghton, Mifflin & Co. 1889.↩