It is from America that Lafayette derived the saying that created a commotion at the time, that resistance is the most sacred of duties. There also was the theory that political power comes from those over whom it is exercised, and depends upon their will; that every authority not so constituted is illegitimate and precarious; that the past is more a warning than an example; that the earth belongs to those who are upon it, not to those who are underneath. These are characteristics common to both Revolutions.
At one time also the French adopted and acclaimed the American notion that the end of government is liberty, not happiness, or prosperity, or power, or the preservation of an historic inheritance, or the adaptation of national law to national character, or the progress of enlightenment and the promotion of virtue; that the private individual should not feel the pressure of public authority, and should direct his life by the influences that are within him, not around him.
And there was another political doctrine which the Americans transmitted to the French. In old colonial days the executive and the judicial powers were derived from a foreign source, and the common purpose was to diminish them. The assemblies were popular in origin and character, and everything that added to their power seemed to add security to rights. James Wilson, one of the authors and commentators of the constitution, informs us that "at the Revolution the same fond predilection, and the same jealous dislike, existed and prevailed. The executive, and the judicial as well as the legislative authority, was now the child of the people, but to the two former the people behaved like stepmothers. The legislature was still discriminated by excessive partiality." This preference, historic but irrational, led up naturally to a single chamber. The people of America and their delegates in Congress were of opinion that a single Assembly was every way adequate to the management of their federal concerns, and when the Senate was invented, Franklin strongly objected. "As to the two chambers," he wrote, "I am of your opinion that one alone would be better; but, my dear friend, nothing in human affairs and schemes is perfect, and perhaps this is the case of our opinions."
Alexander Hamilton was the ablest as well as the most conservative of the American statesmen. He longed for monarchy, and he desired to establish a national government and to annihilate state rights. The American spirit, as it penetrated France, cannot well be described better than it was by him: "I consider civil liberty, in a genuine, unadulterated sense, as the greatest of terrestrial blessings. I am convinced that the whole human race is entitled to it, and that it can be wrested from no part of them without the blackest and most aggravated guilt. The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of the Divinity itself, and can never be erased or obscured by mortal power."
But when we speak in the gross of the American Revolution we combine different and discordant things. From the first agitation in 1761 to the Declaration of Independence, and then to the end of the war in 1782, the Americans were aggressive, violent in their language, fond of abstractions, prolific of doctrines universally applicable and universally destructive. It is the ideas of those earlier days that roused the attention of France, and were imported by Lafayette, Noailles, Lameth, and the leaders of the future revolution who had beheld the lowering of the British flag at Yorktown. The America of their experience was the America of James Otis, of Jefferson, of The Rights of Man.
A change followed in 1787, when the Convention drew up the Constitution. It was a period of construction, and every effort was made, every scheme was invented, to curb the inevitable democracy. The members of that assembly were, on the whole, eminently cautious and sensible men. They were not men of extraordinary parts, and the genius of Hamilton failed absolutely to impress them. Some of their most memorable contrivances proceeded from no design, but were merely half measures and mutual concessions. Seward has pointed out this distinction between the revolutionary epoch and the constituent epoch that succeeded: "The rights asserted by our forefathers were not peculiar to themselves. They were the common rights or mankind. The basis of the Constitution was laid broader by far than the superstructure which the conflicting interests and prejudices of the day suffered to be erected. The Constitution and laws of the Federal Government did not practically extend those principles throughout the new system of government; but they were plainly promulgated in the Declaration of Independence."
Now, although France was deeply touched by the American Revolution, it was not affected by the American Constitution. It underwent the disturbing influence, not the conservative.
The Constitution, framed in the summer of 1787, came into operation in March 1789, and nobody knew how it worked, when the crisis came in France. The debates, which explain every intention and combination, remained long hidden from the world. Moreover, the Constitution has become something more than the original printed paper. Besides amendments, it has been interpreted by the courts, modified by opinion, developed in some directions, and tacitly altered in others. Some of its most valued provisions have been acquired in this way, and were not yet visible when the French so greatly needed the guiding lessons of other men's experience. Some of the restrictions on the governing power were not fully established at first.
The most important of these is the action of the Supreme Court in annulling unconstitutional laws. The Duke of Wellington said to Bunsen that by this institution alone the United States made up for all the defects of their government. Since Chief Justice Marshall, the judiciary undoubtedly obtained immense authority, which Jefferson, and others besides, believed to be unconstitutional; for the Constitution itself gives no such power. The idea had grown up in the States, chiefly, I think, in Virginia. At Richmond, in 1782, Judge Wythe said: "Tyranny has been sapped, the departments kept within their own spheres, the citizens protected, and general liberty promoted. But this beneficial result attains to higher perfection when, those who hold the purse and the sword differing as to the powers which each may exercise, the tribunals, who hold neither, are called upon to declare the law impartially between them, if the whole legislature – an event to be deprecated – should attempt to overleap the boundaries prescribed to them by the people, I, in administering the justice of the country, will meet the united powers at my seat in this tribunal, and, pointing to the Constitution, will say to them: 'Here is the limit of your authority; hither shall you go, but no further.'" The Virginian legislature gave way, and repealed the act.
After the Federal Constitution was drawn up, Hamilton, in the seventy-eighth number of the Federalist, argued that the power belonged to the judiciary; but it was not constitutionally recognised until 1801. "This," said Madison, "makes the judiciary department paramount, in fact, to the legislature, which was never intended, and can never be proper. In a government whose vital principle is responsibility, it never will be allowed that the legislative and executive departments should be completely subjected to the judiciary, in which that characteristic feature is so faintly seen." Wilson, on the other hand, justified the practice on the principle of the higher law: "Parliament may, unquestionably, be controlled by natural or revealed law, proceeding from divine authority. Is not this superior authority binding upon the courts of justice? When the courts of justice obey the superior authority, it cannot be said with propriety that they control the inferior one; they only declare, as it is their duty to declare, that this inferior one is controlled by the other, which is superior. They do not repeal an act of Parliament; they pronounce it void, because contrary to an overruling law." Thus the function of the judiciary to be a barrier against democracy, which, according to Tocqueville, it is destined to be, was not apparent. In the same manner religious liberty, which has become so much identified with the United States, is a thing which grew by degrees, and was not to be found imposed by the letter of the law.
The true natural check on absolute democracy is the federal system, which limits the central government by the powers reserved, and the state governments by the powers they have ceded. It is the one immortal tribute of America to political science, for state rights are at the same time the consummation and the guard of democracy. So much so that an officer wrote, a few months before Bull Run: "The people in the south are evidently unanimous in the opinion that slavery is endangered by the current of events, and it is useless to attempt to alter that opinion. As our government is founded on the will of the people, when that will
