New-York tribune., 1894-04-27
THE CONSTITUTION.
ENGLISH CHARACTISTICS IN AMERICAN
ORGANIC LAW.

Mr. Ellis exemplifes that modern philosophy
which excludes intention in political development
and dwells on the power of what may be calieu
instinct. In carrying out his system OF lnterpre-
tation, as applied to the Constitution OF the
United States, he naturally pays little attention
to exceptions while he follows with satisfaction
the even course of nature To one who takes a
slightly different view Of the case, however the
exceptions require special study. Such one Is
willing to grant that. guided by instinct men
tread unthinkngly the paths of their ancestors.
What they do when they are alert when INTEL
ligence is active in them. is another question.
He readily acknowledges, at the suggestion OF
critics like Mr. Ellis. that America inherited the
bi-camera legislative system, the personal eXecu-
tive and the judicial system almost wholly from
ccnsfaud But he will put his finger down on
The facts that America chose 10 have written
constitution, hit upon an eccentric method or
electing members Of the National Second CHAM
ber and By some accident gave its court OF last
resort popularity so marked that, accordlne
to Mr. Ellis il has been msinterpreted by nearly
all those who have attempted TO explain 1t; ana
he will say that these changes are not to be ac-
counted for by an evolution of the unconscious
II IL be said that one of these American traits
Is necessary result Of another he VIII reply
that this fact may simplify. but does not soVe
the problem which troubles him. PerhapS 'hS
doubter will at the very outset profess an ir-
reverent and heretical disbelief in the develop
ment OF modern legislatures from the divided
assembly of the ancient Teutons. He VIII nave
good reason for hestating. The separate gather
ing of chiefs and old men on the one side and
of warriors on the other never was Teutonic
peculiarity. 1t was Tactus who told the story.
If he had travelled somewhat more than he did
no might perhaps have found this bifurcated
legislature in the forests of Africa as well as in
the forests of Germany The Red Indians had
the idea in as perfect a form as that known 10
the North Europeans 1t never could become
the basis for representative government thoueh
1t is unquestionably. as Freeman and Mr.. ElIls
agree the origin Of the English House or Lords.
Hardly anything could be more illogical than to
claim that the bi-cameral legislatures of the
English-speaking world are the direct result or
evolution from this inchoate device OF savages'
The mind instantly turns if not to the three
estates of France-where Roman influence might
be suspected-then to the four chambers Of
Sweden. where Teutonsm has had an opportu-
nity to work itself out without any interference
except from one form another of Christianity
In explaining why the English typical legisla-
lure was restricted TO two chambers, Mr.. Ellis
unconsciously destroys his whole thOry Of evo-
luton from the old German meetings. The Par
'liament summoned by Edward l in 1898 sat in
three separate houses. and each voted differ-
,ent tax payable by those whom 1t represented.
This tri-cameral system might just as well have
survived until the present day If the clergy had
not become weary of attending any except their
own ecclesiastical assemblies. 1t would surely
be difficult to show that antique German ideas
caused the English clergy to stay at home in the
thirteenth and fourteenth centuries just when
the critical years had come in the making OF
Parliament.
The fact that America adopted written Con-
stitution has to be considered with the other
contemporary fact that the world for genera
4ion or so referred all government to contract.
Mr.. Ellis treats the social contract theory some
xvhat scornfullv He is right. No conscious
agreement could be found at the bottom of any
political organism whose history reached back
into primitive or savage times. But the idea
of a contract the prerequisite OF good govern
unent of freedom from tyranny, was bound TO
occur to mankind at certain stage OF self
consciousness. 1t was exploited in the seven
.teenth century by Grotus. Hobbies, Spinoza and
others whom Mr.. Ellis sharply criticises; but II
also affected minds Of the Roundhead Army
which can hardly he supposed 10 nave known
much about the philosophers. In the war Of
the Commons against the Stuart tyranny. Eng
land was more than once offered the privilege
of adopting an agreement which would have
proved written constitution. But the plan did
not appeal to the nation. 1t would not appeal
now to Englishmen as a political body. Ac-
cordng to the simplest principles Of evolution
alien elements must. therefore, be taken into the
account when the preference for written const-
tutions shown by the English speaking Amer-
cans is considered The fact that the colonies
were governed by charter is undoubtedly i'm
portant; but the mother country also had what
might be called partial constitutions In writing.
and yet these had never led the housekeeping
Englishrnen TO favor complete document. On
the other hand chosen Americans, almost as soon
as independence had been achieved, sat down de-
liberatey and with the aid OF Montesquieu
mainly but not without little Greek and Latin,
studied every scheme of republicanism and
federalism that had ever been tried. To a very
large extent, they put In writing, as Mr.. Ellis
saws the features of the English Constitution as
it was in their day But the act OF putting it
in writing showed how far they were from the
English point OF view and how near. for eX-
ample, to that of the States-GeneraL
The effect of a written constitution upon the
judicial system was extraordinary. 1t gave TO
the court of last instance an aspect SO peculiar
that the most acute legal students were puzzled
and amazed. They said that the Americans had
hit upon device FOR guarding their constitu-
ton. The Supreme Court was a perpetual SEN
tinel In imperfect way similar effect had
followed the adoption Of written constitution
in the Netherlands. Advocates of Dutch infu-
ence In the political development Of the United
States have cited this fact as the mark of an
idea borrowed by Americans from Holland. But
Mr.. Ellis is certainly right in asserting that
judicial methods IN England and America re-
main the The purpose of the court is to
decide in Of dispute what the law Is. But
in England the latest legislation necessarily
takes precedence of all the rest while in America
the last enactment must be scrutinized in the
light Of organic law and may be cast aside. The
,,..o~~ouoo ,bo, cauced h,, tho mora oct ~ mt.