to the two houses of Parliament. But this was a right not easily established. It was claimed and fought for a long time before it finally became a firmly established principle of the English Constitution. Around the question of taxation centered all the earlier constitutional struggles. The power to tax was the one royal prerogative which was first limited. In time Parliament extended its powers and succeeded in making its assent necessary to all governmental acts which vitally affected the welfare of the nation, whether they involved an exercise of the taxing power or not. The law-making power, however, as we understand it now was seldom employed, the idea of social readjustment through general legislation being a recent growth. But as revenues were necessary, the taxing power was the one legislative function that was constantly exercised. It is not strange then that the earlier constitutional development should have turned mainly upon the relation of the various political classes to the exercise of this power.

That English constitutional development resulted in a parliament composed of two houses may be regarded as accidental. Instead of this double check upon the King there might conceivably have been more than two, or there might, as originally was the case, have been only one. Two distinct elements, the secular nobility and the dignitaries of the church, combined to form the House of Lords. The House of Commons was also made up of two distinct constituencies, one urban and the other rural. If each of these classes had deliberated apart and acquired the right to assent to legislation as a separate body, a four-chambered parliament, such as existed in Sweden up to 1866 and still survives in Finland, would have been the result.[2]

The essential fact, everywhere to be observed in the development of constitutional government, is the rise to political power of classes which compete with the King and with each other for the control of the state. The monopoly of political power enjoyed by the King was broken down in England when the nobility compelled the signing of Magna Charta. This change in the English Constitution involved the placing of a check upon the King in the interest of the aristocracy. Later, with the development of the House of Commons as a separate institution, the power of the King was still further limited, this time in the interest of what we may call the commercial and industrial aristocracy.

At this stage of its development the English government contained a system of checks and balances. The King still retained legislative power, but could not use it without the consent of both Lords and Commons. Each branch of the government possessed the means of defending itself, since it had what was in effect an absolute veto on legislation. This is a stage in political evolution through which governments naturally pass. It is a form of political organization intermediate between monarchy and democracy, and results from the effort to check and restrain, without destroying, the power of the King. When this system of checks was fully developed the King, Lords and Commons were three coördinate branches of the English government. As the concurrence of all three was necessary to enact laws, each of these could defeat legislation desired by the other two.

The development of this system of checks limited the irresponsible power of the King only on its positive side. The negative power of absolute veto the King still retained. While he could not enact laws without the consent of the other two coördinate branches of the government, he still had the power to prevent legislation. The same was true of the Lords and Commons. As each branch of government had the power to block reform, the system was one which made legislation difficult.

The system of checks and balances must not be confused with democracy; it is opposed to and can not be reconciled with the theory of popular government. While involving a denial of the right of the King or of any class to a free hand in political matters, it at the same time denies the right of the masses to direct the policy of the state This would be the case even if one branch of the government had the broadest possible basis. If the House of Commons had been a truly popular body in the eighteenth century, that fact would not of itself have made the English government as a whole popular in form. While it would have constituted a popular check on the King and the House of Lords, it would have been powerless to express the popular will in legislation.

The House of Commons was not, however, a popular body in the eighteenth century. In theory, of course, as a part of Parliament it represented the whole English people. But this was a mere political fiction, since by reason of the narrowly limited suffrage, a large part of the English people had no voice in parliamentary elections. Probably not one-fifth of the adult male population was entitled to vote for members of Parliament. As the right to vote was an incident of land ownership, the House of Commons was largely representative of the same interests that controlled the House of Lords.

That the House of Commons was not democratic in spirit is clearly seen in the character of parliamentary legislation. The laws enacted during this period were distinctly undemocratic. While the interests of the land-holding aristocracy were carefully guarded, the well-being of the laboring population received scant consideration. The poor laws, the enclosure acts and the corn laws, which had in view the prosperity of the landlord, and the laws against combination, which sought to advance the interests of the capitalist at the expense of the laborer, show the spirit of the English government prior to the parliamentary reform of 1832. The landlord and capitalist classes controlled the government and, as Professor Rogers observes, their aim was to increase rents and profits by grinding the English workman down to the lowest pittance. "I contend," he says, "that from 1563 to 1824, a conspiracy, concocted by the law and carried out by parties interested in its success, was entered into, to cheat the English workman of his wages, to tie him to the soil, to deprive him of hope, and to degrade him into irremediable poverty."[3]

But it is not in statute law alone that this tendency is seen. English common law shows the same bias in favor of the classes which then controlled the state. There is no mistaking the influences which left their impress upon the development of English law at the hands of the courts. The effect of wealth and political privilege is seen here as well as in statutory enactment. Granting all that can justly be said in behalf of the wisdom and reasonableness of the common law, the fact nevertheless remains, that its development by the courts has been influenced by an evident disposition to favor the possessing as against the non-possessing classes. Both the common and the statute law of England reflected in the eighteenth century the political supremacy of the well-to-do minority.

CHAPTER II

THE AMERICAN GOVERNMENT OF THE REVOLUTIONARY PERIOD

The American colonists inherited the common law and the political institutions of the mother country. The British form of government, with its King, Lords and