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behavior—a plan, according to Hamilton, "conformable to the most approved of the state constitutions."1


The question of appointment of the judges caused much discussion. It was first decided that the Senate should have this power. Mr. Gorham, dissatisfied with this plan, suggested that the judges be appointed by the executive, with the advice and consent of the second branch, in the mode prescribed by the constitution of Massachusetts." This mode, which "had been ratified by the experience of a hundred and forty years,' was the one ultimately adopted.

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Sir Henry Maine speaks of the Supreme Court as a "virtually unique creation of the founders of the Constitution." But it is, as we have seen, unique rather in position than in form. There were supreme courts in many of the States, forming a separate branch of government, with judges chosen for good behavior, and, in one state at least, in the manner prescribed by the Federal Constitution. Even in respect to constitutional importance we find a precedent in the state courts, for Gerry, in maintaining that "the judiciary would have a sufficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality," reminded the Convention that "in some states the judges had actually set aside laws as being against the Constitution."

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"Le grand objet de la justice est de substituer l'idée du droit à celle de la violence; de placer des intermédiares entre le gouvernement et l'emploi de la force materielle.' As a lubricant to reduce to a minimum the friction between

1 Federalist, No. 78.

Elliot, V, 188.

Elliot, V, 328 and 330. "All judicial officers appointed by the governor, by and with the advice and every such nomination shall be made by the governor." II, Sec. I, Art. IX.

Popular Government, p. 217.
Elliot, V, 151; III, 299 and 325.

" De Tocqueville, Democratie en Amerique, I, 233.

shall be nominated and consent of the council, and Cons. Mass, 1780, Pt. II, Ch.

the parts of the complex machine of federal government, nothing has ever been devised so ingenious and so perfect as our system of supreme and inferior courts.1


In its chief features, then, we find our Constitution to be a skillful synthesis of elements carefully selected from those entering into the composition of the then existing state governments. The Convention "was led astray by no theories of what might be good, but clave closely to what experience had demonstrated to be good." The separation of powers, the form of the legislative assembly, the characteristics of the two branches, the representation and its periodic readjustment, the mode of passing laws, the institution of a single executive, the mode of choice by electors, the President's veto and his executive powers, the Vice-president, the regulations concerning impeachments, the judiciary, especially its form, the manner of appointing judges of the Supreme Court, and, it may be added, a number of minor points, such as the definition of treason, which it has seemed unnecessary to mention specificallyall find their archetypes in the constitutions of the states. On the other hand, the isolated position of the President, the flexibility of our system of Federal Courts and the peculiar position by which they exercise an all-important influence on the welfare of the Union, are original features. As a federation, our Union differs in almost every respect from those which preceded it, so much so that De Tocqueville declares it an essentially new thing with an old name. The principle of representation which was in 1787 confined "to a narrow corner of the British government" lies at the root of our Constitution, as it did of the state constitutions before it. The transcendent power and jurisdiction of parliament, a recognized principle of

1 For a brilliant resumé of our judicial system, see De Tocqueville, Democratie, I, 251 et seq.


Mr. J. R. Lowell, address before the N. Y. Reform Club, April 13th, 1888.

English constitutional law,' finds no analogy in the political ideas of this country, the "absolute despotic power, which must in all governments reside somewhere," resting with the people.

Bloomington, Illinois.


1 Vide Blackstone Commentaries, 1, 160; also Dicey, Law of the Constitution. * James Wilson's Works, 1, 426-430.




THE offering which the most prominent leader of the younger generation of the historical school has made to the founder and head of that school, Wilhelm Roscher, at the fiftieth anniversary of his doctorate, is a most fitting tribute.1 It is as if Schmoller had presented a laurelwreathed portrait of the veteran's intellectual self. A vigorous sketch, which forms the centre of the book (pp. 147-171), shows Roscher's place and significance in political economy, and around this Schmoller has set a frame of older sketches, consisting chiefly of the literary portraits which he has made of other economists, as occasion served, during the twenty-five years between 1863 and 1888, and made, too, in the light of the historical school. It is this latter element which gives unity to the book. Embodied in these portraits a whole literary epoch stands before us— an epoch which includes the beginning and growth of the political economy founded by Roscher upon historical method, its battles and victories and renewed battles. The life-stage upon which Roscher's scientific mission was fulfilled is thus faithfully exhibited to us.

It is but suitable to the occasion that the reviewer, too, should devote his first words to that portion of the work which immediately concerns the person of the celebrated As Schmoller expressly says in a preface addressed to Roscher, he has no wish to honor the jubilar "with a panegyric such as is customary at celebrations of


1 This article is a translation of an article in Conrad's Jahrbücher für Nationalökonomie (Vol. LIV, p. 75) by Professor Dr. v. Böhm-Bawerk, in which he reviews a late work of Professor Schmoller's on the Literature of the Political and Social Sciences ("Zur Litteraturgeschichte der Staats- und Sozialwissenschaften"). The book is dedicated to Professor Roscher, in honor of the fiftieth anniversary of his doctorate.

this sort," and he has not attempted it. On the contrary, he has sought to analyze psychologically, and with the strictest objectivity, the character and the work of his master. He has therefore, as is reasonable, placed duly in the light all the merits and superiorities of the man, but he has also not hesitated at least to indicate his weaker points. We have thus a character sketch which is, above all else, true, and which, in spite of a few wrinkles that the brush of the painter has not softened, is extraordinarily honorable to its subject and creditable to its author.

As is natural, Schmoller honors Roscher above all, as the road breaker of historical investigation in political economy. He shows how Roscher began as a philologist and historian, later to find his life-work in transplanting abstract political economy to historical ground. He rightly values Roscher's rare historical gifts, his happy tact in interpreting and estimating an often incomplete set of facts, and his enormous, many-sided learning. He does not fail to point out, in this connection, that certain pecu. liarities "for which historical minds are not usually distinguished" are also lacking in Roscher. He reviews the master's most important works-his researches in historicopolitical science, his history of the literature of economics, and his system of political economy, which last is his most widely-known, but not his most important, work. He shows that important inequalities exist between the different volumes of the "System;" that in the two special volumes which treat of the economics of agriculture, of trade and manufacture, the peculiarities of Roscher's historical tendencies are seen at their best, while the first volume on general theoretical economy and the volume on finance are of less value. He enlivens the description by means of comparisons, in which he contrasts Roscher as a systematic writer with Rau, and as a literary historian with Dühring, and finally he sums up his study with the following concise and significant words: "Roscher has the polyhistorical feature in common with the older Göttingen

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