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America from the Earliest Settlement to the Adoption of the Consti-
tution, Phila., 1860. R. Frothingham: The Rise of the Republic of the United States, Boston, 1872. G. Bancroft: History of the United States, from the Discovery of the American Continent to the Close of the Revolutionary War, 10 vols., Boston, 1834–74. G. Bancroft: History of the Formation of the Constitution of the United States of America, 2 vols., New York, 1882. R. Hildreth: History of the United States from the Discovery of America to the End of the Sixteenth Congress, 6 vols., New York, 1879 (new edition). G. Tucker: The History of the United States from their Colonization to the End of the Twenty-Sixth Congress in 1841. J. Grahame: The History of the Rise and Progress of the United States of North America from their Colonization till the Declaration of Independence, 4 vols., Phila., 1845. T. Pitkin: A Political and Civil History of the United States of America from their Commencement to the Close of the Administration of Washington, including a Summary of the Political and Civil State of the New England Colonies Prior to that period, 2 vols., New Haven, 1828. H. Von Holst: Verfassung und Demokratie der Vereinigten Staaten von America, I. Theil, Düsseldorf, 1873 (Von Holst's Constitutional History of the United States of America, Vol. I., translated by John J. Lalor and Alfred Bishop Mason, Callaghan & Co., Chicago, 1877). G.T. Curtis: History of the Constitution, 2 vols., New York, 1863.1
§ 1. IN GENERAL. Like every constitution which has or can have a real life, that of the United States of America is a result of actual circumstances of the past and the present, and not a product of abstract political theorizing. It can therefore be understood and rightly judged only from the standpoint of the history of the development of the country. A knowledge of the facts of its origin is not, however, sufficient to understand and to judge it.
1 For lack of space, I cannot enumerate many important biographies. Unfortunately, I must abandon the idea of specifying the books (their number is by no means small) which lay claim to scientific treatment of their subjects, which, while of service on this or that point, are in general either worthless or are crammed full of stupid blunders. Books once named are not repeated in subsequent lists of authorities. In the case of current official publications (laws, stenographic reports of the debates of congress, etc.) I do not give the number of volumes.
For, since the life of the people is the basis of the constitution, and undergoes a steady development, the constitution itself, quite apart from any formal alterations, must have a certain capacity for change, and this not the less real because there is no formal statement of it in the instrument itself. A constitution which resembles a Chinese shoe can suit only a nation that has sunk into Chinese inertia. The fundamental law of a state must have, without hurt to its firmness, enough elasticity to be able to meet fully every new development of national needs, without, however, either breaking loose from its general framework, or subjecting this to sudden change. The real essence of the constitution, as it takes concrete shape in legislation, must grow and change with the advancing public and private life of the people. Thus it is always in a steady process of development. This is an absolutely essential element in forming a judgment upon it, but is wholly ignored when it is interpreted simply by the rules which are binding upon judges in the application of ordinary statutory law to cases before them. These rules, indeed, are of full force in regard to the fundamental law, but the latter must nevertheless always be read, considered and criticised by the light of history.1 If the statesman is bound to be, in the practical discharge of his duties, a conscientious jurist, the jurist must, in his work of examination and testing, always keep in mind the point of view of the statesman.
$ 2. HISTORY OF THE ORIGIN OF THE UNION.— The ARTICLES OF CONFEDERATION. The English colonies which changed themselves, July 4, 1776, into the United States of America had always — with the exception of the Dutch period of New Amsterdam (New York) — had an indirect legal relation to each other, because they were all subject to the political control of the same mothercountry. But quite apart from this, some among them very early established closer ties with one another. The contiguous territory of the colonies and the equality in outward conditions of life among the colonists developed a community of interests which grew steadily both broad and deep, and at last necessarily became stronger than the bonds of law which knit the separate colonies to the mother-land. On the other hand, the political and social organization of the different colonies took such different shapes, and the sparseness of the population and insufficient means of communication did so much to promote separate development, that from the very beginning of these gropings after union a tendency to limit the union at any rate to what was absolutely necessary showed itself clearly. The wishes and struggles of the people for political union did not hurry ahead of the development of actual circumstances. At the most they kept step with this development. Often they hobbled behind it slowly and unwillingly. The league of the united colonies of New England, — Massachusetts, Plymouth, Connecticut and New Haven,- in 1643 against the Indians and the Dutch, lost all significance with the occasion which had called it into life. After its unwept death decades passed by before there were any noteworthy signs of the existence of a wish to frame a new, broader and closer alliance. Outside enemies again gave the impulse, and the mother-country took the initiative. On account of the threatened war with France a congress was called at Albany in 1754, at which New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania and Maryland were represented. But while England expected to gain by this only more assurance of the safety of the colonies, and desired especially the establishment of a good understanding with the Indians, the representatives of the colonies were excited by thoughts of a permanent league with correspondingly wide aims. Their suggestions, however, not only were received with no favor by the English government, but were rejected by all the colonial legislatures, without exception. The strife with the mother-country over the right of parliament to lay taxes on the colonies first made the latter see that their deepest interests made their firm alliance an imperative necessity. Nine colonies were represented at the congress at New York in October, 1765, which was answered by the repeal of the Stamp-act. The more the conflict took the shape of a revolution, the more overwhelming became the conviction that there was no longer a struggle between a number of like-minded colonists and the mother-country over a greater or less share of political rights, but that in fact against European England an America was arrayed. The more the colonies adapted their acts to this fact, the more they were impressed with the other fact, that just so far as they were conscious of belonging to each other, they were forced into a position apart from the rest of the world. They could not make simply ad hoc an offensive and defensive alliance, if the common weal was to be victoriously won, but at this time, long before the swing of mind and spirit had reached its highest point, every suggestion of a complete fusion was rejected decisively and with increasing emphasis. The congress which met at Philadelphia early in September, 1774, was attended by delegates from all the colonies except Georgia, was called a “continental congress,” and spoke in the name
1 Pomeroy: An Introduction to the Constitutional Law of the United States, SS 18-21.