Chapter 1

JAMES M. BECK

HONORARY BENCHER OF GRAY'S INN

_The Constitution of the United States_

_A brief Study of the Genesis, Formulation and Political Philosophy of the Constitution of the United States_

_By James M. Beck, LL.D_.

_Solicitor-General of the United States, Honorary Bencher of Gray's Inn_

_With a Preface by The Earl of Balfour_

"_Where there is no vision, the people perish; but he that keepeth the Law, happy is he."--Proverbs xxix_. 18

"_Remove not the ancient landmark, which thy fathers have set."--Proverbs xxii_. 28

TO THE HON. HARRY M. DAUGHERTY

ATTORNEY-GENERAL OF THE UNITED STATES

A TRUE AND LOYAL FRIEND, A FAIR AND CHIVALROUS FOE

With whom it is the author's great privilege to collaborate as Solicitor-General in defending and vindicating in the Supreme Court of the United States the principles and mandates of its Constitution

_Chamonix_,

_July_ 14 1922

_Preface by the Earl of Balfour_[1]

I have been greatly honoured by your invitation to take the chair on this interesting occasion. It gives me special pleasure to be able to introduce to this distinguished audience my friend, Mr. Beck, Solicitor-General of the United States. It is a great and responsible office; but long before he held it he was known to the English public and to English readers as the author who, perhaps more than any other writer in our language, contributed a statement of the Allied case in the Great War which produced effects far beyond the country in which it was written or the public to which it was first addressed. Mr. Beck approached that great theme in the spirit of a great judge; he marshalled his arguments with the skill of a great advocate, and the combination of these qualities--qualities, highly appreciated everywhere, but nowhere more than in this Hall and among a Gray's Inn audience--has given an epoch-making character to his work. To-day he comes before us in a different character. He is neither judge nor advocate, but historian: and he offers to guide us through one of the most interesting and important enterprises in which our common race has ever been engaged.

The framers of the American Constitution were faced with an entirely new problem, so far, at all events, as the English-speaking world was concerned; and though they founded their doctrines upon the English traditions of law and liberty, they had to deal with circumstances which none of their British progenitors had to face, and they showed a masterly spirit in adapting the ideas of which they were the heirs to a new country and new conditions. The result is one of the greatest pieces of constructive statesmanship ever accomplished. We, who belong to the British Empire, are at this moment engaged, under very different circumstances, in welding slowly and gradually the scattered fragments of the British Empire into an organic whole, which must, from the very nature of its geographical situation, have a Constitution as different from that of the British Isles, as the Constitution of the British Isles is different from that of the American States. But all three spring from one root; all three are carried out by men of like political ideals; all three are destined to promote the cause of ordered liberty throughout the world. In the meanwhile we on this side of the Atlantic cannot do better than study, under the most favourable and fortunate conditions, the story of the great constitutional adventure which has given us the United States of America.

A.J.B.

[Footnote 1: [Address of the Earl of Balfour as Chairman on the occasion of the delivery on June 13, 1922, in Gray's Inn of the first of the lectures herein reprinted.]]

_Introduction by Sir John Simon, K.C._[2]

I have the privilege and the honour of adding a few words to express our thanks to the Solicitor-General of the United States for this memorable course of lectures. They are memorable alike for their subject and their form; alike for the place in which we are met and for the man who has so generously given of his time and learning for our instruction. Mr. Beck is always a welcome visitor to our shores, and nowhere is he more welcome than in these ancient Inns of Court which are the home and source of law for Americans and Englishmen alike. In contemplating the edifice reared by the Fathers of the American Constitution we take pride in remembering that it was built upon British foundations by men, many of whom were trained in the English Courts; and when Mr. Beck lectures on this subject to us, our interest and our sympathy are redoubled by the thought that whatever differences there may be between the Old World and the New, citizens of the United States and ourselves are the Sons of a Common Mother and jointly inherit the treasure of the Common Law. And we cannot part with Mr. Beck on this occasion without a personal word. Plato records a saying of Socrates that the dog is a true philosopher because philosophy is love of knowledge, and a dog, while growling at strangers, always welcomes the friends that he knows. And the British public often greets its visitors with a touch of this canine philosophy. We regard Mr. Beck, not as a casual visitor, but as a firm friend to whom we owe much; he has been here again and again and we hope will often repeat his visits, and Englishmen will never forget how, at a crisis in our fate, Mr. James Beck profoundly influenced the judgment of the neutral world and vindicated, by his masterly and sympathetic argument, the justice of our cause.

[Footnote 2: Address of Sir John Simon on the conclusion, on June 19,1922, of the three lectures herein printed.]

_Author's Introduction_

This book is a result of three lectures, which were delivered in the Hall of Gray's Inn, London, on June 13, 15, and 19, 1922, respectively, under the auspices and on the invitation of the University of London. The invitation originated with the University of Manchester, which, through its then Vice-Chancellor, Dr. Ramsay Muir, two years ago graciously invited me to visit Manchester and explain American political institutions to the undergraduates. Subsequently I was greatly honoured when the Universities of Cambridge, Edinburgh and London joined in the invitation.

Unfortunately for me--for I greatly valued the privilege of explaining the institutions of my country to the undergraduates of these great Universities--my political duties made it impossible for me to visit England prior to June 1, about which time the Supreme Court of the United States, in which my official duties largely preoccupy my time, adjourns for the summer. Any dates after June 1 were inconvenient to the first three Universities, but it was my good fortune that the University of London was able to carry out the plan, and that it had the cordial co-operation of that venerable Inn of Court, Gray's Inn, one of the "noblest nurseries of legal training."

Thus I was privileged to address at once an academic and a professional audience.

I came to England for this purpose as a labour of love. I had no anticipation of success, for I feared that the interest in the subject-matter of my lectures would be very slight.

My surprise and gratification increased on the occasion of each lecture, as the audiences grew in numbers and distinction. Many leading jurists and statesmen took more than a mere complimentary interest, and some of them, although pressed with social and public duties, honoured me with their attendance at all three lectures. How can I adequately express my appreciation of the great honour thus done me by the Earl of Balfour, the Lord Chancellor, Lord Justice Atkin, the Vice-Chancellor of the University of London, and many other leaders in academic and legal circles--not to forget the Chief Justice of the United States, who paid me the great compliment of attending the last lecture. To one and nil of my auditors, my heartfelt thanks!

I also must not fail to acknowledge the generous space given in the British Press to these lectures, and the even more generous allusions to them in the editorial columns. An especial acknowledgment is due to Viscount Burnham and _The Daily Telegraph_ for their generous interest in this book. The good cause of Anglo-American friendship has no better friend than Lord Burnham.

This experience has convinced me that now, more than ever before, there is in England a deep interest in American institutions and their history. This is as it should be, for--for better or worse--England and America will play together a great part in the future history of the world. In double harness they are destined to pull the heavy load of the world's problems. Therefore these "yoke-fellows in equity" must know each other better, and, what is more, _pull together_.

As I was revising the proofs of these lectures in beautiful Chamonix, the prospectus of the Scottish-American Association reached me, in which its Honorary Secretary and my good friend, Dr. Charles Sarolea, took occasion to make the following suggestion to his British compatriots:

"To remove those causes of estrangement, to avoid a fateful catastrophe, in other words, to bring about a cordial understanding _with_ America, the first condition must be an understanding _of_ America. Such an understanding, or even the atmosphere in which such an understanding may grow, has still to be created. It is indeed passing strange that in these days of cheap books and free education, America should be almost a '_terra incognita_,' that we should know next to nothing of American history, of the American Constitution, of American practical politics, of the American mentality. We scarcely read American newspapers or American books. Even such masters of classical prose as Francis Parkman, perhaps the greatest historian who has used the English language as his vehicle, are almost unknown to the average reader. Our students do not visit American universities as they used before the War to visit German universities. The consequence is that again and again we are running the risk of perpetrating the most grotesque errors of judgment, of committing the most serious political blunders, in defiance of American public opinion."

The success of my Gray's Inn lectures convinces me that Dr. Sarolea underestimates the interest in America and its history in England. However, the episode, which is treated in these lectures, is, as he says, "_terra incognita_" not only in England, but even in the United States. It is amazing how little is known in America of the facts given in my second lecture. The American student, after rejoicing in the victory at Yorktown and the end of the War of Independence, generally skips about eight years to 1789, mid his interest in the history of his own country recommences with the inauguration of President Washington.

Students of history in both countries thus miss one of the most interesting and instructive chapters of American history, and indeed of any history.

I have ventured to add to my Gray's Inn lectures another address, which I delivered as the "annual address" at the session of the American Bar Association in Cincinnati, Ohio, on August 31, 1921. I do so, because it has a direct bearing on the decay of the spirit of constitutionalism both in America and elsewhere. It discusses a great _malaise_ of our age, for which, I fear, no written Constitution, however wise, is an adequate remedy. It was published in condensed form in the issue of the _Fortnightly_ for October, 1921, and an acknowledgment is due to its courteous editor for permission to republish it.

I have forborne in these lectures to make more than a passing reference to the League of Nations and the great Conference which framed it, tempting as the obvious analogy was. The reader who studies the appendices will see that the Covenant of the League more nearly resembles the Articles of Confederation than the Constitution of 1787.

I only mention the subject to suggest that the reader of these lectures will better understand why the American people take the written obligations of the League so seriously and literally. We have been trained for nearly a century and a half to measure the validity and obligations of laws and executive acts in Courts of Justice and to apply the plain import of the Constitution. Our constant inquiry is, "Is it so nominated" in that compact? In Europe, and especially England, constitutionalism is largely a spirit of great objectives and ideals.

Therefore, while in these nations the literal obligations of Articles X, XI, XV, and XVI of the Covenant of the League are not taken rigidly, we in America, pursuant to our life-long habit of constitutionalism, interpret these clauses as we do those of our Constitution, and we ask ourselves, Are we ready to promise to do, that which these Articles literally import, join, for example, in a commercial, social and even military war against any nation that is deemed an aggressor, however remote the cause of the war may be to us? Are we prepared to say that in the event of a war or threatened danger of war, the Supreme Council of the League may take any action it deems wise and effectual to maintain peace? This is a very serious committal. Other nations may not take it so literally, but with our life-long adherence to a written Constitution as a solemn contractual obligation, we do.

This is said in no spirit of hostility to the League, but only to explain the American point of view. Since I delivered these lectures, I took a short trip to the Continent, and while sojourning in Geneva, made a visit to the offices of the League. All I there saw greatly interested me, and I could have nothing but a feeling of admiration for the effective and useful administrative work which the League is doing.

The men who framed the Covenant of the League tried to do, under more difficult, but not dissimilar, conditions, what the framers of the American Constitution did in 1787. In both cases the aim was high, the great purpose meritorious. Those Americans who, for the reasons stated, are not in sympathy with the structural form and political objectives of the League, are not lacking in sympathy for its admirable administrative work in co-ordinating the activities of civilized nations for the common good. In any study of a World Constitution, the example of those who framed the American Constitution can be studied with profit.

JAMES M. BECK.

_Chamonix_,

July 14, 1922.

_Contents_

PREFACE BY THE EARL OF BALFOUR

INTRODUCTION BY SIR JOHN SIMON

AUTHOR'S INTRODUCTION

FIRST LECTURE: THE GENESIS OF THE CONSTITUTION

SECOND LECTURE: THE FORMULATION OF THE CONSTITUTION

THIRD LECTURE: THE POLITICAL PHILOSOPHY OF THE CONSTITUTION

THE REVOLT AGAINST AUTHORITY

_I. The Genesis of the Constitution of the United States_

I trust I need not offer this audience, gathered in the noble hall of this historic Inn--of "old Purpulei, Britain's ornament"--any apology for challenging its attention in this and two succeeding addresses to the genesis, formulation, and the fundamental political philosophy of the Constitution of the United States. The occasion gives me peculiar satisfaction, not only in the opportunity to thank my fellow Benchers of the Inn for their graciousness in granting the use of this noble Hall for this purpose, but also because the delivery of these addresses now enables me to be, for the moment, in fact as in honorary title a Bencher, or Reader, of this time-honoured society.

If I needed any justification for addresses, which I was graciously invited to deliver under the auspices of the University of London, an honour which I also gratefully acknowledge, it would lie in the fact that we are to consider one of the supremely great achievements of the English-speaking race. It is in that aspect that I shall treat my theme; for, as a philosophical or juristic discussion of the American Constitution, my addresses will be neither as "deep as a well, nor as wide as a church door."

My auditors will bear in mind that I must limit each address to the duration of an hour, and that I cannot go deeply or exhaustively into a subject that has challenged the admiring comment and profound consideration of the intellectual world for nearly a century and a half.

If England and America are to act together in the coming time--and the destinies of the world are, to a very large extent, in their keeping, then they must know each other better, and, to this end, they must take a greater interest in each other's history and political institutions. My principal purpose in these lectures is to deepen the interest of this great nation in one of the very greatest and far-reaching achievements of our common race.

Americans have never lacked interest in English history; for however broad the stream of our national life, how could we ignore its chief source?

But is there in England an equal interest in the history of America, whose origin and development constitute one of the most dramatic and significant dramas ever played upon the stage of this "wide and universal theatre of man"? It is true that Thackeray, in his _Virginians_, gave us in fiction the finest picture of our colonial life, and the late and deeply lamented Lord Bryce wrote one of the best commentaries upon our institutions in _The American Commonwealth_. In more recent years two of the most moving portraits of our Hamilton and Lincoln are due to your Mr. Oliver and Lord Charnwood. We gratefully recognize this; and yet, how many educated Englishmen have studied that little known chapter of our history, which gave to the progress of mankind a contribution to political science which your Gladstone praised as the greatest "ever struck off at a given time by the brain and purpose of man"? If "peace hath her victories no less renown'd than war," this achievement may well justify your study and awaken your admiration; for, as I have already said and cannot too strongly emphasize, it was the work of the English-speaking race, of men who, shortly before they entered upon this great work of constructive statecraft, were citizens of your Empire. The conditions of colonial development had profoundly stimulated in these English pioneers the sense and genius for constitutionalism.

In his speech on Conciliation with America of March 22, 1775, Edmund Burke showed his characteristically philosophic comprehension of this powerful constitutional conscience of the then American subjects of the Empire. After stating that in no other country in the world was law so generally studied, and referring to the fact that as many copies of Blackstone's Commentaries had been sold in America as in England, he added:

"This study renders men acute, inquisitive, dexterous, prompt in attack, ready in defence, full of resources. 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."

Moreover, these hardy pioneers were the privileged heirs of the great political traditions of England. While the Constitution of the United States was very much more than an adaptation of the British Constitution, yet its underlying spirit was that of the English speaking race and the Common Law. Behind the framers of the Constitution, as they entered upon their momentous task, were the mighty shades of Simon de Montfort, Coke, Sandys, Bacon, Eliot, Hampden, Lilburne, Milton, Shaftesbury and Locke. Could there be a better illustration of Sir Frederick Pollock's noble tribute to the genius of the common law:

"Remember that Our Lady, the Common Law, is not a task-mistress, but a bountiful sovereign, whose service is freedom. The destinies of the English-speaking world are bound up with her fortunes and migrations and its conquests are justified by her works"?

Another reason makes the consideration of the subject not only interesting but opportune. "These are the times that try men's souls." It is a time of sifting, when men of all nations in civilization in these critical days are again testing the value even of those political institutions which have the sanction of the past. Society is in a state of flux. Everywhere the foundations of governmental structures seem to be settling--let us hope and pray upon a _surer_ foundation--and when the seismic convulsion of the world war is taken into account, it is not surprising that this is so. While the storm is not yet past and the waves have not wholly subsided, it is natural that everywhere thoughtful men as true mariners are taking their reckonings to know where they are and whether the frail bark of human institutions is still sufficiently seaworthy to keep afloat.

Moreover, the patent evidences of weakness in the international organization that we call civilization, the imperative need of ending the spirit of moral anarchy, and the urgent necessity of rebuilding the shattered ruins of the social edifice on surer foundations by the integration of the nations, if possible, into some new form of world organization, gives peculiar interest in these terrible days to the manner in which the American people solved a similar problem more than a century ago.

Then, as now, a world war had ended. Then, as now, half the world was prostrated by the wounds of fratricidal strife. As Washington said: "The whole world was in an uproar," and he added that the task "was to steer safely between Scylla and Charybdis." The problem, then as now, was not only to make "the world safe for democracy," but to make democracy, for which there is no alternative, safe for the world. The thirteen colonies in 1787, while small and relatively unimportant, were, however, a little world in themselves, and, relatively to their numbers and resources, this problem, which they confronted and solved, differed in degree but not in kind from that which now confronts civilization. Impoverished in resources, exhausted by the loss of the flower of their youth, demoralized by the reaction from feverish strife, the forces of disintegration had set in in the United States between 1783 and 1787. Law and order had almost perished and the provisional government had been reduced to impotence. A few wise and noble spirits, true Faithfuls and Great Hearts, led a despondent people out of the Slough of Despond till their feet were again on firm ground and their faces turned towards the Delectable Mountains of peace, justice, and liberty. Let it be emphasized that they did this, not by seeking more power, but by imposing restraints upon themselves. That spirit of self-restraint is the essence of the American Constitution.

So enduring was their achievement that to-day the Constitution of the United States is the oldest comprehensive written form of government now existing in the world. Few, if any, forms of government have better withstood the mad spirit of innovation, or more effectively proved their merit by the "arduous greatness of things done."

For this reason, as the nations of the world are now trying in a cosmic form and under similar conditions to do that which the founders of the American Republic in 1787 did in a microcosmic form, a short narration of that earlier achievement may not be unprofitable in this day and generation, when we are blindly groping towards some common basis for international co-ordination.