last foregoing chapters may be inclined to dismiss the question summarily. "Rigid Constitutions," he will say, "are on your own showing a delusion and a sham. The American Constitution has been changed, is being changed, will continue to be changed, by interpretation and usage. It is not what it was even thirty years ago; who can tell what it will be thirty years hence? If its transformations are less swift than those of the English Constitution, this is only because England has not even yet so completely democratized herself as America had done half a century ago, and therefore there has been more room for change in England. If the existence of the fundamental Constitution did not prevent violent stretches of executive power during the war, and of legislative power after as well as during the war, will not its paper guarantees be trodden under foot more recklessly the next time a crisis arrives? It was intended to protect not only the States against the central government, not only each branch of the government against the other branches, but the people against themselves, that is to say, the people as a whole against the impulses of a transient majority. What becomes of this protection when you admit that even the Supreme court is influenced by public opinion, which is only another name for the reigning sentiment of the moment? If every one of the checks and safeguards contained in the document may be overset, if all taken together may be overset, where are the boasted guarantees of the fundamental law? Evidently it stands only because it is not at present assailed. It is like the walls of Jericho, tall and stately, but ready to fall at the blast of the trumpet. It is worse than a delusion it is a snare; for it lulls the nation into a fancied security, seeming to promise a stability for the institutions of government, and a respect for the rights of the individual, which are in fact baseless. A flexible constitution like that of England is really safer, because it practises no similar deceit, but by warning good citizens that the welfare of the commonwealth depends always on themselves and themselves only, stimulates them to constant efforts for the maintenance of their own rights and the deepest interests of society."

:

This statement of the case errs as much in one direction by undervaluing, as common opinion errs by overvaluing, the stability of rigid constitutions. They do not perform all that the solemnity of their wording promises. But they are not therefore useless.

To expect any form of words, however weightily conceived, with whatever sanctions enacted, permanently to restrain the passions and interests of men is to expect the impossible. Beyond a certain point, you cannot protect the people against themselves any more than you can, to use a familiar American expression, lift yourself from the ground by your own boot-straps. Laws sanctioned by the overwhelming physical power of a despot, laws sanctioned by supernatural terrors whose reality no one doubted, have failed to restrain those passions in ages of slavery and superstition. The world is not so much advanced that in this age laws, even the best and most venerable laws, will of themselves command obedience. Constitutions which in quiet times change gradually, peacefully, almost imperceptibly, must in times of revolution be changed more boldly, some provisions being sacrificed for the sake of the rest, as mariners throw overboard part of the cargo in a storm in order to save the other part with the ship herself. To cling to the letter of a Constitution when the welfare of the country for whose sake the Constitution exists is at stake, would be to seek to preserve life at the cost of all that makes life worth having-propter vitam vivendi perdere causas.

Nevertheless the rigid Constitution of the United States has rendered, and renders now, inestimable services. It opposes obstacles to rash and hasty change. It secures time for deliberation. It forces the people to think seriously before they alter it or pardon a transgression of it. It makes legislatures and statesmen slow to overpass their legal powers, slow even to propose measures which the Constitution seems to disapprove. It tends to render the inevitable process of modification gradual and tentative, the result of admitted and growing necessities rather than of restless impatience. It altogether prevents some changes which a temporary majority may clamour for, but which will have ceased to be demanded before the barriers interposed by the Constitution have been overcome.1

It does still more than this. It forms the mind and temper of the people. It trains them to habits of legality. It strengthens their conservative instincts, their sense of the value of stability and permanence in political arrangements. It makes them feel

1 The sense of these services induces some thoughtful Americans to believe that it might be prudent for England to place some fundamental constitutional rules out of the reach of the ordinary methods of parliamentary change. See note to this chapter at the end of this volume.

2 An illustration of what I mean is afforded by the history of the Roman

that to comprehend their supreme instrument of government is a personal duty, incumbent on each one of them. It familiarizes them with, it attaches them by ties of pride and reverence to, those fundamental truths on which the Constitution is based.

These are enormous services to render to any free country, but above all to one which, more than any other, is governed not by the men of rank or wealth or special wisdom, but by public opinion, that is to say, by the ideas and feelings of the people at large. In no country were swift political changes so much to be apprehended, because nowhere has material growth been so rapid and immigration so enormous. In none might the political character of the people have seemed more likely to be bold and prone to innovation, because their national existence began with a revolution, which even now lies only a century behind. That none has ripened into a more prudently conservative temper may be largely ascribed to the influence of the famous instrument of 1789, which, enacted in and for a new republic, summed up so much of what was best in the laws and customs of an ancient monarchy.

private law. That law surpassed the laws of all other ancient States chiefly owing to the conservative temper and habits of the Roman people and the Roman lawyers. These conservative habits were largely due to the fact that early in the history of the Republic the customary law of the nation was solemnly enacted in the form of a sort of code, the so-called Law of the Twelve Tables. The existence of this code, which summed up the law in a concise and impressive form, and which had stood almost unmodified for several generations before the need of modifying it began to be felt, caused legal changes-and these necessarily became frequent when the nation had begun to extend its dominions, and to grow in commerce, wealth, and civilization-to be made in a cautious and gradual way, here a little and there a little, so that continuity was preserved, failures abandoned, the results of successful experiments secured. Thus development, while slower, became surer and better rooted in the sentiments of the people, who were themselves educated into a reverential regard for the law, and taught to abstain in practice from the imprudent exercise of that power of swift legislation which they all along possessed.

PART II

CHAPTER XXXVI

NATURE OF THE AMERICAN STATE

FROM the study of the National Government, we may go on to examine that of the several States which make up the Union. This is the part of the American political system which has received least attention both from foreign and from native writers. Finding in the Federal president, cabinet, and Congress a government superficially resembling those of their own countries, and seeing the Federal authority alone active in international relations, Europeans have forgotten and practically ignored the State Governments to which their own experience supplies few parallels, and on whose workings the intelligence published on their side of the ocean seldom throws light. Even the European traveller who makes the six or seven days' run across the American continent, from New York via Philadelphia and Chicago to San Francisco, though he passes in this journey of 2100 miles over the territories of eleven self-governing commonwealths, hardly notices the fact. He uses one coinage and one post-office; he is stopped by no custom-houses; he sees no officials in a state livery; he thinks no more of the difference of jurisdictions than the passenger from London to Liverpool does of the counties traversed by the line of the North-Western Railway. So, too, our best informed English writers on the science of politics, while discussing copiously the relation of the American States to the central authority, have failed to draw on the fund of instruction which lies in the study of State Governments themselves. Mill in his Representative Government scarcely refers to them. Mr. Freeman in his learned essays, Sir H. Maine in his ingenious book on Popular Government, pass by phenomena which would have admirably illustrated some of their reasonings.1

1 The first authors known to me who have in Europe, insisted with adequate force on their value, are M. Boutmy of the Parisian École Libre des Sciences Politiques, and Dr. von Holst, the constitutional historian of America.

American publicists, on the other hand, have been too much absorbed in the study of the Federal system to bestow much thought on the State governments. The latter seem to them the most simple and obvious things in the world, while the former, which has been the battle-ground of their political parties for a century, excites the keenest interest, and is indeed regarded as a sort of mystery, on which all the resources of their metaphysical subtlety and legal knowledge may well be expended. Thus while the dogmas of State sovereignty and State rights, made practical by the great struggle over slavery, have been discussed with extraordinary zeal and acumen by three generations of men, the character power and working of the States as separate selfgoverning bodies have received little attention or illustration. Yet they are full of interest; and he who would understand the changes that have passed on the American democracy will find far more instruction in a study of the State governments than of the Federal Constitution. The materials for this study are unfortunately, at least to a European, either inaccessible or unmanageable. They consist of constitutions, statutes, the records of the debates and proceedings of constitutional conventions and legislatures, the reports of officials and commissioners, together with that continuous transcript and picture of current public opinion which the files of newspapers supply. Of these sources only one, the constitutions, is practically available to a person writing on this side the Atlantic. To be able to use the rest one must go to the State and devote one's self there to these original authorities, correcting them, where possible, by the recollections of living men. It might have been expected that in most of the States, or at least of the older States, persons would have been found to write political, and not merely antiquarian or genealogical, State histories, describing the political career of their respective communities, and discussing the questions on which political contests have turned. But this has been done in comparatively few instances, so that the European inquirer finds a scanty measure of the assistance which he would naturally have expected from previous labourers in this field.1 I call it a field: it is rather a primeval forest, where the vegetation is rank, and through which

1 Since these lines were written, such a series of State histories has been begun under the title of American Commonwealths. Of the volumes that have already appeared some possess high merit; but they do not always bring the narrative down to those very recent times which are most instructive to the student of existing institutions.