The only theories of political economy with which their debates show familiarity1 were a few exploded maxims of Hume,2 quoted in the Convention, and perhaps a single reference to the classification of taxes made by the French physiocrats.3

Their study of ancient history seems to have gone little beyond the Lives of Plutarch and a few compilations made during the eighteenth century. With modern English history most had

such knowledge as is contained between the covers of Hume and Catharine Macaulay, together with the traditions of the conflict between the Crown and Parliament in the previous century, and a full acquaintance with contemporary events on the continent of Europe as well as Great Britain. A few had read with care the Parliamentary History, besides Locke and some writers on political science in the eighteenth century, and Wyse and Paine, if not Rousseau, had made all familiar with the theory of the social contract. But no references to these works are to be found in the reports of the debates, which abound in illustrations from colonial history. One only of them had any claim to the title of civilian, and his reading in that direction seems to have gone little beyond the works of Kames, although perhaps the most important phrase in the Constitution is said to have been taken by him from the civil law.5 The common law had been the subject of their deepest study,

of the structure of that famous league. A number of the members of the Convention were graduates of American colleges; but at that time the curriculum of such a college went little beyond what is now required for admission to the freshman class. Two had studied in the Scotch universities, and one for a short time at Oxford; but the parades of classical learning in the debates show little knowledge which was not derived from Montesquieu. See Maine, Popular Government, p.204.

5 Judge Wilson, who is said to have suggested the words, "impair the obligation of contracts." Holmes' Argument in Sturges v. Crowninshield, 4 Wheaton, 122, 151.

6 In no country, perhaps, in the world, is the law so general a study. The profession itself is numerous and powerful, and in most provinces it takes the lead. The greater number of the deputies sent to the Congress were lawyers. But all who read, and most do read, endeavor to obtain some smattering in that science. I have been told by an eminent bookseller, that in no branch of his busi

The

ness, after tracts of popular devotion, were so many books as those on the law exported to the plantations. colonists have now fallen into the way of printing them for their own use. I hear that they have sold nearly as many of Blackstone's Commentaries in America as in England. General Gage marks out this disposition very particularly in a letter now on your table. He states that all the people in his government are lawyers or smatterers in law-and that in Boston they have been enabled, by successful chicane, wholly to evade many parts of one of your capital constitutions."

"This study renders men acute, inquisitive, dexterous, prompt in attack, ready in defence, full of recourses. In other countries the people, more simple and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle. They augur misgovernment at a distance, and snuff the approach of

but even in that their books were few. According to John Adams, at the outbreak of the revolution there was but one copy of the State Trials and Selden's Tract of the Judicature of Parliament in the United States.7

8

With two great writers of their own time they were thoroughly familiar. The lectures of Sir William Blackstone were then recognized as an authority in America as well as England; and the writings of Montesquieu were not only cited constantly with respect, but studied before the Convention as a preparation for its great work.9

From the former, they had learned those compacts between the Crown and Commons which had proved indispensable to British freedom. By the latter, they had been taught the causes of the decay of other nations; and especially the theory that each government which is permanent must be divided into three distinct and independent departments, the legislative, the judiciary and the executive.10 The truth of this had been deeply impressed

tyranny in every tainted breeze." (Burke's Speech on Conciliation with America, March 22, 1775, Burke's Works, Am. ed., vol. ii, pp. 124, 125.)

7 Those were in Boston. John Adams' Works, vol. x, pp. 238-239. In 1790 there was a copy of an English impeachment trial at Worcester, Massachusetts, but none in New Hampshire. For Jeremiah Smith was obliged to drive there from the latter State in order to find a form from which to draw the impeachment of Judge Woodbury Langdon. (Life of Jeremiah Smith, p. 38.) John Dickinson at least was well read in the Parliamentary History.

8 According to Burke there were almost as many English copies of Blackstone sold in the United States as in England (supra, note 6). An American edition was published in Philadelphia in 1771. A copy bought by Roger Sherman in the same year is now in the library of the New York City Bar Association.

The Spirit of the Laws was cited

constantly in the debates at Philadelphia and the State Conventions, as well as in The Federalist. Washington, when preparing for the Convention, studied and copied with his own hand an abstract made for him by Madison. (Bancroft's Formation of the Constitution, p. 211.)

10In every form of government (TоTεía) there are three departments (ópia), and in every form the wise law-giver must consider, what, in respect to each of these, is for its interest. If all is well with these, all must needs be well with it, and the differences between forms of government are differences in respect to these. Of these three, one is the part which deliberates (τὸ βουλευόμενον) about public affairs; the second is that which has to do with the offices...; and the third is the judicial part (rò dikúšov)."— Aristotle, Politics, book VI, c. xiv.

"Il y a dans chaque État trois sortes de pouvoirs : la puissance législative, la puissance exécutrice des

upon them by the imbecility of Congress under the Articles of Confederation.

They had been well disciplined by that severe school-mistress, experience. In the army, some had been tried by the weakness of the central power and the need of dancing attendance on local legislatures blinded to the common welfare by local interests and prejudices. As judges, others had observed the injustice and impairment of public credit from the obstructions cast by State legislatures in the way of foreign and domestic creditors. In

these legislatures again, many had seen the strength and weakness of their organization, and the necessity of some breakwaters against sudden floods of popular passion.

In Congress, they had felt the need of unity in the executive, and the powers of taxation and the regulation of commerce in the national legislature. Many had assisted in framing the constitutions of their respective States, and had tested the strength and weakness of the work they had thus accomplished. All these things were ever before them in their conclave. And if they builded better than they knew, they worked with intelligent foresight.

§ 7. Prototypes of the Federal Constitution.

The Constitution of the United States is not the first written constitution of a nation, although it is the first that has had a prolonged and successful duration. Articles of confederation in peace and war between different states were the natural outgrowth of treaties of alliance between small powers under constant dangers from an enemy too strong for any one of them alone. Such was the Achaian League, which lasted in Greece one hundred and thirty-four years, from the reign of Pyrrhus to the proconsulate of Mummius.1 At the outbreak of the Revolution, such confederations dragged out an impotent existence in Switzerland and the Netherlands. From the latter form of league were copied many of the defects in the instrument which the Constitution displaced.2 Such confederacies, however, were, with the exception of

§ 7. 1 See Freeman's History of Federal Goverment, passim, especially pp. 245, 704, for a history of the rise and fall and an account of the structure of the Achaian League.

2 In their first formative effort they missed the plain road of English and American experience. They had rightly been jealous of extending the supremacy of England, because it was a government outside of themselves; they now applied that jealousy to one another, forgetting that the general power would be in their own hands. Joseph Hawley of Massachusetts had, in November, 1775, advised

annual parliaments of two houses; the committee for framing the confederation, misled partly by the noted distrust for which the motive had ceased and partly by erudition which studied Hellenic councils and leagues as well as later confederacies, took for its pattern the Constitution of the United Provinces, with one house and no central power of final decision. These evils were nearly fatal to the United Provinces themselves, although every one of them could be reached by a messenger within a day's journey; and here was a continent of States which could not be consulted