has on more than one occasion referred to it in deciding con There are few traces in the Federalist' of familiarity with previous speculations on politics, except those of Montesquieu in the 'Esprit des Lois,' the popular book of that day. The writers attach the greatest importance to all Montesquieu's opinions. They are much discomposed by his assertion, that Republican government is necessarily associated with a small territory, and they are again comforted by his admission, that this difficulty might be overcome by a confederate Republic. Madison indeed had the acuteness to see that Montesquieu's doctrine is as often polemical as philosophical, and that it is constantly founded on a tacit contrast between the institutions of his own country, which he disliked, with those of England, which he admired. But still his analysis, as we shall hereafter point out, had much influence upon the founders and defenders of the American Constitution. On the whole, Guizot's criticism of the Federalist' is the most judicious. It is an invaluable work on the application of the elementary principles of government to practical administration. Nothing can be more sagacious than its anticipation of the way in which the new institutions would actually work, or more conclusive than its exposure of the fallacies which underlay the popular objections to some of them. "It is not to be supposed that Hamilton, Jay, and Madison were careless of historical experience. They had made a careful study of many forms of government, ancient and modern. Their observations on the ancient Republics, which were shortly afterwards to prove so terrible a snare to French political theorists, are extremely just. The cluster of commonwealths woven together in the United Netherlands' is fully examined, and the weaknesses of this anomalous confederacy are shrewdly noted. The remarkable structure of the Romano-German Empire is depicted, and there is reason to suspect that these institutions, now almost forgotten, influenced the framers of the American Constitution, both by attraction and by repulsion. But far the most important experience to which they appealed was that of their own country, at a very recent date. The earliest link had been supplied to the revolted colonies by the first or American 'Continental' Congress, which issued the Declaration of Independence. There had subsequently been the Articles of Confederation,' ratified in 1781. These earlier experiments, their demonstrable miscarriage in many particulars, and the disappointments to which they gave rise, are a storehouse of instances and a plentiful source of warning and reflection to the writers who have undertaken to show that their vices are removed in the Constitution of 1787-89. "Nevertheless, there is one fund of political experience upon which the Federalist' seldom draws, and that is the political experience of Great Britain. The scantiness of these references is at first sight inexplicable. The writers must have understood Great Britain better than any other country, except their own. They had been British subjects during most of their lives. They had scarcely yet ceased to breathe the atmosphere of the British Parliament and to draw strength from stitutional questions, always with respect, although on some points it has not agreed with the authors, notably in regard its characteristic disturbances. Next to their own stubborn valour, the chief secret of the colonists' success was the incapacity of the English generals, trained in the stiff Prussian system soon to perish at Jena, to adapt themselves to new conditions of warfare, an incapacity which newer generals, full of admiration for a newer German system, were again to manifest at Majuba Hill against a meaner foe. But the colonists had also reaped signal advantage from the encouragements of the British Parliamentary Opposition. If the King of France gave 'aid,' the English Opposition gave perpetual comfort' to the enemies of the King of England. It was a fruit of the English party system which was to reappear, amid much greater public dangers, in the Peninsular War; and the revelation of domestic facts, the assertion of domestic weakness, were to assist the arms of a military tyrant, as they had assisted the colonists fighting for independence. Various observations in the Federalist' on the truculence of party spirit may be suspected of having been prompted by the recollection of what an Opposition can do. But there could be no open reference to this in its pages; and, on the whole, it cannot but be suspected that the fewness of the appeals to British historical examples had its cause in their unpopularity. The object of Madison, Hamilton, and Jay was to persuade their countrymen; and the appeal to British experience would only have provoked prejudice and repulsion. I hope, however, to show that the Constitution of the United States is coloured throughout by political ideas of British origin, and that it is in reality a version of the British Constitution, as it must have presented itself to an observer in the second half of the last century." (Citing especially Numbers 5, 14, 19, 20, 69 and 70, and referring to Bancroft's History of the Constitution of the United States, vol. II, p. 336.) Popular Government, Sir Henry Sumner Maine, John Murray, London, 1885, Essay IV, pp. 202-207. A FRENCH VIEW OF THE FEDERALIST. In Hamilton's edition of the Federalist the following occurs (page lxxxviii), after referring to some of the earliest American editions: “No other edition was published in the United States until the year 1802, three or more translations-the first in 1792—having, in the meantime, appeared in Paris, during the exciting discussions which then occupied the people of France. Talleyrand appreciating it, said to the Duc D'Aranda, envoy at the French Court from Spain- Vouz avez lu Le Fédéraliste ? '—'Non,' replied D'Aranda,—‘Lisez donc lisez,' was the significant answer. Guizot, another distinguished statesman of France, observed, 'In the application of elementary principles of government to practical administration, it was the greatest work known to him."" See also the opinions of Chancellor KENT and Mr. Justice STORY referred to in Hamilton's Edition of the Federalist immediately following the above quotation. to the effects of treaties with foreign powers, as contracts and as laws.S $238. Treaty-making power referred to in the Federalist and in other publications.-The treaty-making power vested by the Constitution in the Central Government was equally prominent as a factor in this National discussion as it had been in the several State conventions to which reference has been made in the preceding chapter. It would require too much space to quote all that appears in the Federalist and other pamphlets, published at that time, on the subject of treaties, and the treaty-making power; the few selections quoted in the text and the notes show that the people at large, as well as the delegates to the conventions, thoroughly understood what a far-reaching power it was, how exclusively it was lodged in the Central Government, and how necessary this was to the future peace and happiness of the Union. The authors of the Federalist seem to have considered these propositions elementary principles for the government of confederated Republics. $239. The Federalist, No. XXII, reference to treaties. -Referring to treaties the author of No. XXII,' says: "A circumstance which crowns the defects of the Confederation remains yet to be mentioned,-the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final § 237. § 239. And 1 Published in the New York 8 See § 320, p. 460, post. For views of Chief Justice MARSHALL Packet, Friday, December 14, 1787; as to the Federalist and Alexander credited by Lodge to Hamilton. Hamilton, see Cohens vs. Virginia, U. S. Sup. Ct., 6 Wheaton, 264, MARSHALL, Ch. J. jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the same court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice. The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation?" 240. The Federalist, No. XXIII, the treaty-making power should have no constitutional shackles.-The author of No. XXIII, gives his reasons for believing that the powers entrusted to the federal government, in which that of treatymaking is included, "ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defence." * Refers to Articles of Confedera- | 1787; credited by Lodge to Hamiltion. ton. § 240. 1 Published in the New York Packet, Tuesday, December 18, 2 The italics are so in Lodge's edition. $241. The Federalist, No. XXXIX; duality of the Central Government.-A strong exposition of the duality of the Federal-National Government will be found in No. XXXIX,1 in which the author declares, in the final sentence, in support of his point that the proposed Constitution is not, strictly speaking, either National or Federal, but is a composition of both, that: "In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal, and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national." $242. The Federalist, No. XLII; treaties with foreign nations. In No. XLII1 the power to make treaties with foreign nations is again referred to, and the author of that number makes these concise remarks made in regard thereto : "This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations. "The powers to make treaties and to send and receive ambassadors, speak their own propriety. Both of them are comprised in the articles of Confederation, with this differerence only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the States." 243. The Federalist, No. XLV; enlargement of congressional powers.-In No. XLV1it is stated that the change from the articles of Confederation to the Constitution consisted much less in the addition of new powers to the Union than invigoration of its original powers. Continuing, the Federalist says: "The regulation of commerce, it is true, is a new power; but that seems to be an addition which few § 241. 1 Published in the Independent Journal (date not given); credited by Lodge to Madison. § 242. Packet, Tuesday, January 22, 1788; 1 Published in the Independent Journal (date not given); credited 1 Published in the New York by Lodge to Madison. |