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+*** START OF THE PROJECT GUTENBERG EBOOK 10065 ***
+
+[Illustration: _Photo Henry Dixon & Son_ _From the Portrait painted by
+Harrington Mann for Gray's Inn_]
+
+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.
+
+One of England's greatest Prime Ministers, William Pitt, shortly after
+the adoption of the Constitution, prophetically said that it would be
+the admiration of the future ages and the pattern for future
+constitution building. Time has verified his prediction, for
+constitution making has been, since the American Constitution was
+adopted, a continuous industry. The American Constitution has been the
+classic model for the federated State. Lieber estimated that three
+hundred and fifty constitutions were made in the first sixty years of
+the nineteenth century, and, in the constituent States of the American
+Union, one hundred and three new Constitutions were promulgated in the
+first century of the United States.
+
+"Have you a copy of the French Constitution?" was asked of a bookseller
+during the second French Empire, and the characteristically witty Gallic
+reply was: "We do not deal in periodical literature."
+
+Constitutions, as governmental panaceas, have come and gone; but it can
+be said of the American Constitution, paraphrasing the noble tribute of
+Dr. Johnson to the immortal fame of Shakespeare, that the stream of
+time, which has washed away the dissoluble fabric of many other paper
+constitutions has left almost untouched its adamantine strength.
+Excepting the first ten amendments, which were virtually a part of the
+original charter, only nine others have been adopted in more than one
+hundred and thirty years.
+
+A constitution, while primarily for the distribution of governmental
+powers, is, in its last analysis, a formal expression of adherence to
+that which in modern times has been called the higher law, and which in
+ancient times was called natural law. The jurisprudence of every nation
+has, with more or less clearness, recognized the existence of certain
+primal and fundamental laws which are superior to the laws, statutes, or
+conventions of living generations. The original use of the term was to
+import the superiority of the Imperial edict to the laws of the Comitia.
+All nations have recognized this higher law to a greater or less extent.
+If we turn to the writings of the most intellectual race in ancient
+time and possibly in recorded history--the Greeks--we shall see the
+higher law vindicated with incomparable power in the moral philosophy of
+its three greatest dramatists, Aeschylus, Sophocles, and Euripides. How
+was it better expressed than by Antigone when she was asked whether she
+had transgressed the laws of the state and replied:
+
+    "Yes, for that law was not from Zeus, nor did Justice, dweller with
+    the gods below, establish it among men; nor deemed I that thy
+    decree--mere mortal that thou art--could override those unwritten
+    and unfailing mandates, which are not of to-day or yesterday, but
+    ever live and no one knows their birthtide."
+
+Five centuries later the greatest of the Roman lawyers and orators,
+Cicero, spoke in the same terms of a higher law, "which was never
+written and which we are never taught, which we never team by reading,
+but which was drawn by nature herself."
+
+The Roman jurists gave it express recognition. They always recognized
+the distinction between _jus civile_, or the law of the State, and the
+_jus naturale_, or the law of Nature. They nobly conceived that human
+society was a single unit and that it was governed by a law that was
+both antecedent and paramount to the law of Rome. Thus, the idea of a
+higher law transcending the power of a living generation, and therefore
+eternal as justice itself--became lodged in our system of jurisprudence.
+Nor was the Common Law wanting in a recognition of a higher law that
+would curb the power of King or Parliament, for its earlier masters,
+including four Chief Justices (Coke, Hobart, Holt, and Popham),
+supported the doctrine, as laid down by Coke, that the judiciary had the
+power to nullify a law if it were "against common right and
+reason."--(_Bonham's Case_, 8 Coke Reports, 114.)
+
+This view as to the limitation of government and the denial of its
+omnipotence was powerfully accentuated in America by the very conditions
+of its colonization. The good yeomen of England who journeyed to America
+went in the spirit of the noble and intrepid Kent, when, turning his
+back upon King Lear's temporary injustice, he said that he would "shape
+his old course in a country new." Was it strange that the early
+colonists, as they braved the hardships and perils of a dangerous
+voyage, only to be confronted in the wilderness by disease, famine and
+massacre, should fall back for their own government upon these primal
+verities of human society, and claim not only their inherited rights as
+Englishmen, but also the peculiar privileges of pioneers in an
+unconquered wilderness?
+
+This spirit of constitutionalism in America, which culminated in the
+Constitution of the United States, had its institutional origin in the
+spacious days of Queen Elizabeth. That wonderful age, which gave to the
+world not only Shakespeare, Spenser and Jonson, but also Drake,
+Frobisher and Raleigh, was the Anglo-Saxon reaction to the Renaissance.
+The spirit of man had a new birth and was breaking away from the too
+rigid bonds of ancient custom and authority.
+
+Among the notable, but little known, leaders of that time was Sir Edwin
+Sandys, the leading spirit of the London (or Virginia) company. He was a
+Liberal when to be such was an "extra hazardous risk." He was the son of
+a Liberal, for his father, a great prelate, had been sent to the Tower
+for preaching in defence of Lady Jane Grey. The son, Sir Edwin, was the
+foe of monopolies, and in the same Parliament that impeached the great
+genius of this Inn, Francis Bacon, Sandys advocated the then novel
+proposition that accused prisoners should have the right to be
+represented by counsel, to which the strange objection was made that it
+would subvert the administration of justice. As early as 1613, he had
+boldly declared in Parliament that even the King's authority rested upon
+the clear understanding that there were reciprocal conditions which
+neither ruler nor subject could violate with impunity. He might not too
+fancifully be called the "Father of American Constitutionalism," for he
+caused a constitution--possibly the first time that that word was ever
+applied to a comprehensive scheme of government--to be drafted for the
+little colony of Virginia in 1609 and amplified in 1612. Speaking in
+this venerable Hall, whose very walls eloquently remind us of the mighty
+genius of Francis Bacon, it is interesting to recall that these two
+charters of government, which were the beginning of Constitutionalism in
+America and therefore the germ of the Constitution of the United States,
+were put in legal form for royal approval by Lord Bacon himself. Thus
+the immortal Treasurer of this Inn is directly linked with the
+development of Constitutional freedom in America.
+
+Bacon became a member of the council for the Virginia Company in 1609.
+His deep interest in it is attested in the dedication to him by William
+Strachey in 1618 of the latter's _Historie of Travaile into Virginia
+Brittania_.
+
+In his speech in the House of Commons on January 30, 1621, Bacon saw a
+vision of the future and predicted the growth of America, when he said:
+
+    "This kingdom now first in His Majesty's Times hath gotten a lot or
+    portion in the New World by the plantation of Virginia and the
+    Summer Islands. And certainly it is with the kingdoms on earth as it
+    is in the kingdom of heaven, sometimes a grain of mustard seed
+    proves a great tree."
+
+Truly the mustard seed of Virginia did become a great tree in the
+American Commonwealth.
+
+One of Bacon's nephews, also of the Inns of Court, Nathaniel Bacon,
+became the first Liberal leader in the Colonies, and led the first
+revolt against colonial misrule. He was probably of Gray's Inn, for it
+is difficult to imagine a Bacon studying in any Inn than the one to
+which the great Bacon had given so much loving care.
+
+Due to these charters, on July 30, 1619, the little remnant of colonists
+whom disease and famine had left untouched were summoned to meet in the
+church at Jamestown to form the first parliamentary assembly in America,
+the first-born of the fruitful Mother of Parliaments. It was due to
+Sandys not only that the first permanent English settlement in the
+Western World was planted at Jamestown in 1607, but that a later group
+of "adventurers"--for such they called themselves--destined to be more
+famous, were driven by chance of wind and wave to land on the coast of
+Massachusetts. Thus was established, not only the beginning of England's
+colonial Empire--still one of the most beneficent forces in the
+world--but also the principle of local self-government, which, in the
+Western World, was destined to develop the American Commonwealth. The
+compact, signed in the cabin of the _Mayflower_, while not in strictness
+a constitution, like the Virginia Charter, was yet destined to be a
+landmark of history.
+
+Sandys suffered for his convictions, for the party of reaction convinced
+King James that Virginia was a nest of sedition, and the arbitrary
+ruler, in the reorganization of the London company, gave a pointed
+admonition by saying: "Choose the devil, if you will, but not Sir Edwin
+Sandys." In 1621 he was committed to the Tower and only released after
+the House of Commons had made a vigorous protest against his
+incarceration. His successor as treasurer of the London company was
+Shakespeare's patron, the Earl of Southampton, and it is not a fanciful
+conjecture to assume that, when the news of the disaster which befell
+one of the fleets of the London Company on the Island of Bermuda reached
+England, it inspired Shakespeare to write his incomparable sea idyl,
+_The Tempest_. If so, this lovely drama was Shakespeare's unconscious
+apostrophe to America, for in Ariel--seeking to be free--can be
+symbolized her awakening spirit, while Prospero, with his thaumaturgic
+achievements, suggests a constructive genius, which in a little more
+than a century has made one of the least of the nations to-day one of
+the greatest.
+
+Bacon, Sandys, Southampton and the Liberal leaders of the House of
+Commons had implanted in the ideas of the colonists the spirit of
+constitutionalism, which was destined to influence profoundly the whole
+development of the American colonies, and finally to culminate in the
+Constitution of the United States.
+
+The later struggle in the Long Parliament, the fall of Charles I, and
+more especially the deposition of James II, the accession of William of
+Orange, and the substitution for the Stuart claim of divine right that
+of the supremacy of the people in Parliament, naturally had their
+reaction in the Western World in intensifying the spirit of
+constitutionalism in the growing American Commonwealth.
+
+The colonial history was therefore increasingly marked by a spirit of
+individualism, a natural partiality for local rule, and a tenacious
+adherence to their special privileges, whether granted to Crown
+colonies, like New Hampshire, New York, New Jersey, Virginia, the two
+Carolinas, and Georgia, or proprietary governments, like Maryland,
+Delaware, and Pennsylvania, or charter governments, such as
+Massachusetts, Rhode Island, and Connecticut. In the three colonies last
+named formal corporate charters were granted by the Crown, which in
+themselves were constitutions in embryo, and the colonists thus acquired
+written rights as to the government of their internal affairs, upon the
+maintenance of which they jealously insisted. Thus arose the spirit in
+America, which treated constitutional rights, not so much as special
+privileges granted by plenary Sovereignty, but as contractual
+obligations which could be enforced in the Courts against the Sovereign.
+
+All this developed in the colonists a powerful sense of constitutional
+morality, and its pertinency to my present theme lies in the fact that
+when each of the thirteen colonies became, at the conclusion of the War
+of Independence, a separate and independent nation, they were more
+concerned, in establishing a central government, to limit its authority
+and to maintain local self-government than they were to give to the
+new-born nation the powers which it needed. They carried their
+constitutionalism to extremes, which nearly made a strong and efficient
+central government an impossibility.
+
+Nothing was less desired by them than a unified government. It was
+destined to be wrung from their hard necessities. The Constitution was
+the reflex action of two opposing tendencies, the one the imperative
+need of an efficient central government, and the other the passionate
+attachment to local self-rule. Co-operation between the colonies had
+been a matter of long discussion and earnest debate, and primarily
+resulted from the necessity of defence against a common foe the French
+in Canada, and the Indians of the forest. In 1643 four of the New
+England colonies united in a league to defend themselves. In 1693
+William Penn made the first suggestion for a union of all the colonies.
+In 1734 a council was held at Albany at the instance of the Crown to
+provide the means for the defence against France in Canada, and it was
+then that Franklin submitted the first concrete form for a union of the
+colonies into a permanent alliance. It was in advance of the times, for,
+conservative as it was, it was unfortunately opposed both by the Crown
+and the colonies themselves.
+
+The time was not ripe for any such union, and the reason was apparent.
+The colonies differed very much in the character of their populations,
+in the nature of their economic interests, and in their political
+antecedents. They were not wholly of the English race. Many nations in
+Europe had already contributed to the population. For example, New York
+was partly Dutch, and in Pennsylvania there was a considerable element
+of the Swedes, Germans, and Swiss. Moreover, the colonists were as
+widely separated from each other, measured by the facilities of
+locomotion, as are the most remote nations of the world to-day. Only a
+few men ever found occasion to leave their colony to journey to another,
+and most men never left, from birth to death, the community in which
+they lived. Outside of the few scattered communities in the different
+colonies there was an almost unbroken wilderness, with few wagon roads
+and in places only a bridle path. The only methods of communication were
+the letters and still fewer newspapers, which were carried by post
+riders often through an almost trackless wilderness.
+
+Obviously, a working government could not easily be constituted between
+peoples of different religions, races, and economic interests, who, for
+the most part, never met each other face to face and with whom frequent
+communication was impossible.
+
+The differences between the colonies and the mother-country with respect
+to internal taxation slowly developed into an issue of constitutionalism
+rather than of legislative policy. As in England, the immediate question
+affected the power of the Crown to give to the customs inspectors the
+power to make general searches and seizures, to enforce the navigation
+laws. In 1761 James Otis, of Massachusetts, made a fateful speech before
+the colonial legislature, in which, asserting the illegality of the
+search warrants on the ground that they violated the constitutional
+rights of Englishmen to protection in their own homes, he asserted that
+Acts of Parliament which violated the sanctity of the home were void and
+that, more specifically, they violated the charter granted to
+Massachusetts. Asserting the doctrine which at that time was the
+doctrine of the English common law, as stated by Coke and three other
+Chief Justices, he said:
+
+    "To say the parliament is absolute and arbitrary is a contradiction.
+    The Parliament cannot make two and two five. Omnipotency cannot do
+    it.... Parliaments are in all cases to declare what is for the good
+    of the whole; but it is not the declaration of parliament that makes
+    it so: there must be in every instance a higher authority, viz.,
+    GOD. Should an Act of Parliament be against any of His natural laws,
+    which are immutably true, their declaration would be contrary to
+    eternal truth, equity and justice, and consequently void; and so it
+    would be adjudged by the Parliament itself, when convinced of their
+    mistake."
+
+It is a curious fact that in the reaction from the tyranny of the
+Stuarts your country abandoned this principle of the common law by
+substituting for the omnipotence of the Crown the omnipotence of
+Parliament, while in my country the somewhat vague and unworkable
+principle of the common law, which gave the judiciary the power to
+invalidate an act of the legislature, when against natural reason and
+justice, was developed into the great principle, without which
+institutions in an heterogeneous and widely scattered democracy would be
+unworkable, namely that the powers of government are strictly defined,
+and that neither the executive, the legislative, nor the judicial
+departments of the government can go beyond the precise limits
+established by the fundamental law. Like the common law, the
+Constitution was thus the result of a slow evolution. Mr. Gladstone, in
+his oft-quoted remark, gave an erroneous impression when he said:
+
+    "As the British Constitution is the most subtle organism which has
+    proceeded from progressive history, so the American Constitution is
+    the most wonderful work ever struck off, at a given time by the
+    brain and purpose of man."
+
+This assumes that the Constitution sprang, like Minerva, armed
+_cap-à-pie,_ from the brain of the American people, whereas it was as
+much the result of a slow, laborious, and painful evolution as was the
+British Constitution. Probably Gladstone so understood the development
+of the American Constitution and recognized that its framing was only
+the culmination of an evolution of many years.
+
+When the constitutional struggle between the colonies and the Parliament
+became acute, the necessity of a union for a common defence became
+imperative. As early as July, 1773, Franklin recommended the "convening
+of a General Congress" so that the colonies would act together. His
+suggestion was introduced in the Virginia House of Burgesses in May,
+1774, and as a result there met in Philadelphia on September 5 of that
+year the first Continental Congress, styled by themselves: "The
+Delegates appointed by the Good People of these Colonies." Nothing was
+further from their purpose than to form a central government or to
+separate from England. This Congress only met as a conference of
+representatives of the colonies to defend what they conceived to be
+their constitutional rights.
+
+Before the second Continental Congress met in the following year, the
+accidental clash at Lexington and Concord had taken place, and as the
+Congress again re-convened a momentous change had taken place, which
+was, in fact, the beginning of the American Commonwealth. The Congress
+became by force of circumstances a provisional government, and as such
+it might well have claimed plenary powers to meet an immediate exigency.
+So indisposed were they to separate from England or to substitute for
+its rule that of a new government, that the Continental Congress, when
+it then involuntarily took over the government of America, failed to
+exercise any adequate power. It remained simply a conference without
+real power. Each colony had one vote and the rule of unanimity
+prevailed. Even its decisions were largely advisory, for they amounted
+to little more than recommendations to the constituent States as to what
+measures should be taken. Each colony complied with the recommendation
+in its discretion and in its own way. Notwithstanding this fatal lack of
+authority, the Continental Congress, then actually engaged in civil war,
+created an army, and, through its committees, entered into negotiations
+with foreign nations. To support the former, it issued paper money, with
+the disastrous result that could be readily anticipated. While it had a
+presiding officer, it had no executive, and the new nation, which was
+hardly conscious of its own birth, had no judiciary.
+
+Had this _de facto_ government assumed the plenary powers which
+provisional governments must, under similar circumstances, necessarily
+assume, it would have been better for the cause of the colonists. For
+want of an efficient central government, the civil administration of the
+infant nation was marked by a weakness and incapacity that defeated
+Washington's plans and nearly broke his spirit. Washington's little army
+was the victim of the gross incapacity of an impotent government. The
+soldiers came and went, not as the general commanded, but as the various
+colonies permitted. The tragedy of Valley Forge, when the little army
+nearly starved to death, and literally the soldiers could be tracked
+over the snows by their bleeding, unshod feet, was not due to lack of
+clothing and provisions, but to the gross incapacity of a headless
+government that if it had had the wisdom to act lacked the authority.
+The situation was one of chaos. The colonies recruited their own
+contingents, paid such taxes as they pleased, which grew increasingly
+less, and the Congress had no coercive power to enforce its policies,
+either with reference to internal or external affairs. This situation
+was so clearly recognized that immediately after the Declaration of
+Independence on July 4, 1776, the draft of a constitution was proposed
+to give the central government more effective power; but, although the
+necessity was manifest and most urgent, the so-called Articles of
+Confederation, which were then drafted in 1776, were never finally
+adopted by the requisite number of States until March, 1781, when the
+war was nearly over. As the result proved, they marked only a very small
+advance over the existing _de facto_ government, for the constituent
+States were still too jealous of each other and too hostile to the
+creation of a central government to form a truly effective government.
+The founders of the Republic could only learn from their errors, but it
+is their great merit that they had the ability to profit in the stern
+school of experience, of which Franklin has said that it is a "dear
+school, but fools will learn in no other."
+
+The founders of the Republic were not fools, and while they did not, as
+Gladstone seems to intimate, have the inspired wisdom to develop a
+wonderful Constitution by sheer intuition unaided by experience, they
+did have the ability to make of their very errors the stepping-stones to
+a higher destiny.
+
+By the Articles of Confederation, which, as stated, became effective in
+1781, the conduct of foreign affairs was vested in the new government,
+which was also given the power to create admiralty courts, regulate
+coinage, maintain an army and navy, borrow money, and emit bills of
+credit, but the great limitation was that in all other respects the
+constituent States retained absolute power, especially with reference to
+commerce and taxation. All that the central government could do was to
+requisition the States to furnish food supplies, and the States were
+then left to impose the taxes and, if necessary, to enforce their
+payment in their own way, with the inevitable result that they vied with
+each other in the struggle to evade them. The Confederation had no
+direct power over the citizens of the several States. Moreover, the
+Congress could not levy any taxes, or indeed pass any measure unless
+nine out of the thirteen States agreed, and the Constitution could not
+be amended except by unanimous vote. While the Congress could select a
+presiding officer to serve for one year, yet he had no real executive
+authority. During the recess of the Congress, a committee of thirteen,
+consisting of one delegate from each State, had _ad interim_ powers, but
+not greater than the Congress, which they represented.
+
+Such a government would have been fatal to any people, and so it nearly
+proved to be to the infant nation. Two circumstances saved them from the
+consequences of such incapacity: one was the invaluable aid of France,
+and the other the personality of George Washington. Of this great
+leader, one of the noblest that ever "lived in the tide of time," it is
+only necessary to quote the fine tribute paid to him by the greatest of
+the Victorian novelists in his _Virginians_:
+
+    "What a constancy, what a magnanimity, what a surprising
+    persistence against fortune!... Washington, the chief of a nation
+    in arms, doing battle with distracted parties; calm in the midst of
+    conspiracy; serene against the open foe before him and the darker
+    enemies at his back; Washington, inspiring order and spirit into
+    troops hungry and in rags; stung by ingratitude, but betraying no
+    anger, and every ready to forgive; in defeat invincible, magnanimous
+    in conquest and never so sublime as on that day when he laid down
+    his victorious sword and sought his noble retirement--here, indeed,
+    is a character to admire and revere; a life without a stain, a fame
+    without a flaw."
+
+A year after the Articles of Confederation had been adopted, the war
+came to an end by a preliminary treaty on November 30, 1782.
+
+Now follows the least known chapter in American history. It was a period
+of travail, of which the Constitution of the United States and the
+present American nation were born. The government slowly succumbed from
+its own weakness to its inevitable death. Only the shreds and patches of
+authority were left. Gradually the union fell apart. Of the Continental
+Congress only fifteen members, representing seven colonies, remained to
+transact the affairs of the new nation. The army, which previously to
+the termination of the war had dissolved by the hundreds, was now unpaid
+and in a stale of revolt. Measure after measure was proposed in Congress
+to raise money to pay the interest on the bonded indebtedness, which was
+in arrears, and to provide funds for the most necessary expenses, but
+these failed, in Congress for the want of the necessary nine votes or,
+if enacted, the States treated the requisitions with indifference. The
+currency of the United States had fallen almost as low as the Austrian
+kronen, and men derisively plastered the walls of their houses with the
+worthless paper of the Continental Congress. Adequate authority no
+longer remained to carry out the terms of the treaties with England and
+France, and they were nullified by the failure of the infant nation to
+comply with its own obligations and the consequent refusal of the other
+contracting parties to comply with theirs. The government made a call
+upon the States to raise $8,000,000 for the most vital needs, but only
+$400,000 was actually received. Then Congress asked the States to vest
+in it the power to levy a tax of five per cent, on imports for a limited
+period, but, after waiting two years for the action of the States, less
+than nine concurred. The States were then asked to pledge their own
+internal revenue for twenty-five years to meet the national
+indebtedness, but this could only be done by unanimous consent, and
+while twelve States concurred, Rhode Island refused and the measure was
+defeated. It was again the infinite folly of the _liberum veto_ which,
+prior to the great partition, condemned Poland to chronic anarchy.
+
+The impotence of the new government, which was still sitting in
+Philadelphia, can be measured by the fact that on June 9, 1783, word
+came that eighty soldiers were on their way to Philadelphia to demand
+relief. They stacked their arms in front of the State House, where the
+Congress was then sitting, and refused to disband, when requested by
+Col. Alexander Hamilton, as the representative of the Congress, to do
+so. When Congress appealed to the government of Pennsylvania for
+protection, it was advised that the Pennsylvania militia was likewise
+insubordinate. The Congress then hastily fled by night and became a
+fugitive.
+
+The impotence of the Confederation can be measured by the fact that in
+the last fourteen months of its existence its receipts were less than
+$400,000, while the interest on the foreign debt alone was over
+$2,400,000, and the interest on the internal debt was five-fold greater.
+
+In the absence of any government and in the period of general
+prostration it was not unnatural that the spirit of Bolshevism grew with
+alarming rapidity. It even permeated the officers of the Army. In March,
+1783, an anonymous communication was sent to Washington's officers to
+meet in secret conference to take some action, possibly to overthrow the
+government. A copy fell into Washington's hands and, while he forbade
+the assemblage of the officers under the anonymous call, he himself
+directed the officers to assemble. He unexpectedly appeared at the
+meeting and, being no speaker, he had reduced his appeal to writing. As
+he adjusted his spectacles to read it, he pathetically said: "I have not
+only grown gray but blind in your service." He then made a touching
+appeal to them not to increase by example the spreading spirit of
+revolt. The very sight of their old commander turned the hearts of the
+revolting element and the officers remained loyal to their noble leader.
+
+Where the spirit of disaffection was thus found in high places it
+naturally prevailed more widely among the masses who had been driven to
+frenzy by their sufferings. This culminated in a revolt in Massachusetts
+under the leadership of an old soldier named Shays, and it spread with
+such rapidity that not only did one-fifth of the people join in
+attempting to overthrow the remnant of established authority in
+Massachusetts, but it rapidly spread to other States. The offices of
+government and the courthouses were seized, the collection of debts was
+forbidden, and private property was forcibly appropriated to meet the
+common needs.
+
+Chaos had come again. It filled Washington's heart with disgust and
+despair. After surrendering his commission to the pitiful remnant of the
+government he had retired to Mount Vernon, and for a time declined to
+act further as the leader of his people. Thus, in October, 1785, he
+wrote James Warren, of Massachusetts:
+
+    "The war, as you have very justly observed, has terminated most
+    advantageously for America, and a fair field is presented to our
+    view; but I confess to you freely, my dear sir, that I do not think
+    we possess wisdom or justice enough to cultivate it properly.
+    Illiberality, jealousy, and local policy mix too much in all our
+    public councils for good government of the union. In a word, the
+    Confederation appears to me to be little more than a shadow without
+    the substance, and Congress a nugatory body, their ordinances being
+    little attended to.... By such policy as this the wheels of
+    government are clogged, and our brightest prospects, and that high
+    expectation which was entertained of us by the wondering world, are
+    turned into astonishment; and, from the high ground on which we
+    stood, we are descending into the vale of confusion and darkness."
+
+Again he wrote to George Mason:
+
+    "I have seen without despondency, even for a moment, the hours which
+    America has styled its gloomy ones, but I have beheld no day since
+    the commencement of hostilities that I thought our liberties in such
+    imminent danger as at present. Indeed, we are verging so fast to
+    destruction that I am feeling that sense to which I have been a
+    stranger until within these three months."
+
+Again in 1786 he writes:
+
+    "I think often of our situation, and view it with concern. From the
+    high ground we stood upon, from the plain path which invited our
+    footsteps, to be so fallen, so lost, is mortifying; but everything
+    of virtue has, in a degree, taken its departure from our land....
+    What, gracious God, is man that there should be such inconsistency,
+    and perfidiousness in his conduct! It was but the other day that we
+    were shedding our blood to obtain the Constitutions under which we
+    now live, and now we are unsheathing our swords to overturn them.
+    The thing is so unaccountable that I hardly know how to realize it
+    or to persuade myself that I am not under an illusion of a dream."
+
+It was, however, the darkest hour before the dawn, and again it was
+Washington who became his country's saviour. In 1785, some commissioners
+from the States of Virginia and Maryland visited Mount Vernon to pay
+their respects to the well-loved commander. After conferring with him
+upon the chaos of the times, they decided to issue a call for a general
+conference of the representatives of the States to be held on September
+11, 1786, at Annapolis, Maryland, to discuss how far the States
+themselves could agree on common regulations of commerce. At the
+appointed time the delegates assembled from Virginia, Pennsylvania,
+Delaware, New York and New Jersey, and finding themselves too few in
+number to achieve the great objective, the convention contented itself
+by issuing another call, drafted by Alexander Hamilton, then under
+thirty years of age, to all the States to send delegates to a convention
+to be held in Philadelphia on the second Monday in May, 1787, "to take
+into consideration the situation of the United States, to devise such
+further provisions as should appear to them necessary to render the
+Constitution of the Federal Government adequate to the exigencies of the
+Union."
+
+The dying Congress tardily approved of this suggestion, but finally, on
+January 21, 1787, grudgingly adopted a resolution that--
+
+    "It is expedient that on the second Monday in May next a convention
+    of delegates, who shall have been appointed by the several States,
+    be held at Philadelphia _for the sole and express purpose of
+    revising the Articles of Confederation_ and reporting to Congress
+    and the several legislatures such alterations and provisions therein
+    as shall, _when agreed to in Congress_ and conformed to by the
+    States, render the Federal Constitution adequate to the exigency of
+    the government and the preservation of the union."
+
+It will be noted by the italicized portions of the resolution that this
+impotent body thus vainly attempted to cling to the shadow of its
+vanished authority by stating that the proposed constitutional
+convention should merely revise the worthless Articles of Confederation
+and that such amendments should not have validity until adopted by
+Congress as well as by the people of the several States. How this
+mandate was disregarded and how the convention was formed, and
+proceeded to create a new government with a new Constitution, and how
+it achieved its mighty work, will be the subject of the next lecture.
+
+Anticipating the masterly ability with which a seemingly impotent and
+dying nation plucked from the nettle of danger the flower of safety, let
+me conclude this first address by quoting the words of de Tocqueville,
+in his remarkable work _Democracy in America_, where he says:
+
+    "The Federal Government, condemned to impotence by its Constitution
+    and no longer sustained by the presence of common danger ... was
+    already on the verge of destruction when it officially proclaimed
+    its inability to conduct the government and appealed to the
+    constituent authority of the nation.... It is a novelty in the
+    history of a society to see a calm and scrutinizing eye turned upon
+    itself, when apprised by the legislature that the wheels of
+    government are stopped; to see it carefully examine the extent of
+    the field and patiently wait for two years until a remedy was
+    discovered, which it voluntarily adopted, without having ever wrung
+    a tear or a drop of blood from mankind."
+
+
+
+
+_II. The Great Convention_
+
+
+Now follows a notable and yet little known scene in the drama of
+history. It reveals a people who, without shedding a drop of blood,
+calmly and deliberately abolished one government, substituted another,
+and erected it upon foundations which have hitherto proved enduring.
+Even the superstructure slowly erected upon these foundations has
+suffered little change in the most changing period of the world's
+history, and until recently its additions, few in number, have varied
+little from the plans of the original architects. The Constitution is
+to-day, not a ruined Parthenon, but rather as one of those Gothic
+masterpieces, against which the storms of passionate strife have beaten
+in vain. The foundations were laid at a time when disorder was rampant
+and anarchy widely prevalent. As I have already shown in my first
+lecture, credit was gone, business paralysed, lawlessness triumphant,
+and not only between class and class, but between State and State, there
+were acute controversies and an alarming disunity of spirit. To weld
+thirteen jealous and discordant States, demoralized by an exhausting
+war, into a unified and efficient nation against their wills, was a
+seemingly impossible task. Frederick the so-called Great had said that a
+federal union of widely scattered communities was impossible. Its final
+accomplishment has blinded the world to the essential difficulty of the
+problem.
+
+The time was May 25, 1787; the place, the State House in Philadelphia, a
+little town of not more than 20,000 people, and, at that time, as
+remote, measured by the facilities of communication, to the centres of
+civilization as is now Vladivostok.
+
+The _dramatis personae_ in this drama, though few in numbers, were,
+however, worthy of the task.
+
+Seventy-two had originally been offered or given credentials, for each
+State was permitted to send as many delegates as it pleased, inasmuch as
+the States were to vote in the convention as units. Of these, the
+greatest actual attendance was fifty-five, and at the end of the
+convention a saving remnant of only thirty-nine remained to finish a
+work which was to immortalize its participants.
+
+While this notable group of men contained a few merchants, financiers,
+farmers, doctors, educators, and soldiers, of the remainder, at least
+thirty-one were lawyers, and of these many had been justices of the
+local courts and executive officers of the commonwealths. Four had
+studied in the Inner Temple, at least five in the Middle Temple, one at
+Oxford under the tuition of Blackstone and two in Scottish Universities.
+Few of them were inexperienced in public affairs, for of the original
+fifty-five members, thirty-nine had been members of the first or second
+Continental Congresses, and eight had already helped to frame the
+constitutions of their respective States. At least twenty-two were
+college graduates, of whom nine were graduates of Princeton, three of
+Yale, two of Harvard, four of William and Mary, and one each from the
+Universities of Oxford, Columbia, Glasgow, and Edinburgh. A few already
+enjoyed world-wide fame, notably Doctor Franklin, possibly the most
+versatile genius of the eighteenth century and universally known and
+honoured as a scientist, philosopher, and diplomat, and George
+Washington, whose fame, even at that day, had filled the world with the
+noble purity of his character.
+
+It was a convention of comparatively young men, the average age being
+little above forty. Franklin was the oldest member, being then
+eighty-one; Dayton, the youngest, being twenty-seven. With the
+exception of Franklin and Washington, most of the potential
+personalities in the convention were under forty. Thus, James Madison,
+who contributed so largely to the plan that he is sometimes called "The
+Father of the Constitution," was thirty-six. Charles Pinckney, who,
+unaided, submitted the first concrete draft of the Constitution, was
+only twenty-nine, and Alexander Hamilton, who was destined to take a
+leading part in securing its ratification by his powerful oratory and
+his very able commentaries in the Federalist papers, was only thirty.
+
+Above all they were a group of gentlemen of substance and honour, who
+could debate for four months during the depressing weather of a hot
+summer without losing their tempers, except momentarily--and this
+despite vital differences--and who showed that genius for toleration and
+reconciliation of conflicting views inspired by a common fidelity to a
+great objective that is the highest mark of statesmanship. They
+represented the spirit of representative government at its best in
+avoiding the cowardice of time-servers and the low cunning of
+demagogues. All apparently were inspired by a fine spirit of
+self-effacement. Selfish ambition was conspicuously absent. They
+differed, at times heatedly, but always as gentlemen of candour and
+honour. The very secrecy of their deliberations, of which I shall
+presently speak, is ample proof how indifferent they were to popular
+applause and the _civium ardor prava jubentium_.
+
+The convention had been slow in assembling. Ample notice had been given
+that it would convene on May 13, 1787, but when that day arrived a mere
+handful of the delegates, less than a quorum, had assembled.
+
+The Virginia delegation, six in number, and forming probably the ablest
+delegation from any State, arriving in time, and failing to find a
+quorum then assembled, employed the period of waiting in submitting to
+the Pennsylvania delegation the outlines of a plan for the new
+Constitution. The plan was largely the work of James Madison, and how
+long it had been in preparation cannot be definitely stated. It is clear
+that four years before a Philadelphia merchant, one Peletiah Webster,
+had published a brochure proposing a scheme of dual sovereignty, under
+which the citizens would owe a double allegiance--one to the constituent
+States within the sphere of their reserved powers, and one to a
+federated government within the sphere of its delegated powers. Leagues
+of States had often existed, but a league which, within a prescribed
+sphere, would have direct authority over the citizens of the constituent
+States, without, however, abolishing the authority of such States as to
+their reserved sphere of power, was a novel theory. How far the Virginia
+project had been influenced by Webster's suggestion is not clear, but it
+is certain that before the convention met Pennsylvania and Virginia,
+two of the most powerful States, were committed to it.
+
+The suggestion was a radical one, for the States, with few exceptions,
+were chiefly insistent upon the preservation of their sovereignty, and
+while they were willing to amend the Articles of Confederation by giving
+fuller authority to the central government, such as it was, the
+suggestion of subordinating the States to a new sovereign power, whose
+authority within circumscribed limits was to be supreme, was opposed to
+all their conventions and traditions. Washington, however, had warmly
+welcomed the creation of a strong central government, and his
+correspondence with the leading men of the colonies for some years
+previously had been burdened with arguments to convince them that a mere
+league of States would not suffice to create a stable nation. To George
+Washington, soldier and statesman, is due above all men the ideal of a
+federated union, for without his influence--that of a noble and
+unselfish leader--the great result would probably never have been
+secured. While still waiting for the convention, to meet, and while
+discussing what was expedient and practicable when they did meet,
+Washington one day said to a group of delegates, who were considering
+the acute nature of the crisis:
+
+    "It is too probable that no plan that we propose will be adopted.
+    Perhaps another dreadful conflict is to be sustained. If, to please
+    the people, we offer what we ourselves disapprove, how can we
+    afterwards defend our work? Let us raise a standard to which the
+    wise and just can repair. The event is in the hand of God."
+
+Noble words, fit to be written in letters of gold over the portal of
+every legislature of the world, and it was in this spirit that the
+convention finally convened on May 25th, 1787.
+
+When the delegates from nine States had assembled, Washington was
+unanimously elected the presiding officer of the convention. It began by
+adopting rules of order, and the most significant of these was the
+provision for secrecy. No copy should be taken of any entry on the
+Journal, or even permission given to inspect it, without leave of the
+convention, and "nothing spoken in the house be printed or otherwise
+published or communicated without leave." The yeas and nays should not
+be recorded. The rule of secrecy was enlarged by an unwritten
+understanding that, even when the convention had adjourned, no
+disclosure should be made of its proceedings during the life of its
+members. When after nearly four months, the convention adjourned, the
+secret had been kept, and no one knew even the concrete result of its
+deliberations until the Constitution itself, and nothing else, was
+offered to the approval of the people. The high-way, upon which the
+State House fronted, was covered with earth, to deaden the noise of
+traffic, and sentries were posted at every means of ingress and egress,
+to prevent any intrusion upon the privacy of the convention. The members
+were not photographed daily for the pictorial Press, nor did any cinema
+register their entrance into the simple colonial hall where they were to
+meet. Notwithstanding this limitation--for no present-day conference or
+assembly can proceed with its labours until its members are photographed
+for the curiosity of the public--these simple-minded gentlemen--less
+intent upon their appearance than their task--were to accomplish a work
+of enduring importance.
+
+The extreme care which was taken to preserve this secrecy inviolate, and
+its purpose, were indicated in an incident handed down by tradition.
+
+One of the members dropped a copy of a proposition then before the
+convention for consideration, and it was found by another of the
+delegates and handed to General Washington. At the conclusion of the
+session, Washington arose and sternly reprimanded the member for his
+carelessness by saying:
+
+    "I must entreat gentlemen to be more careful, lest our transactions
+    get into the newspapers and disturb the public repose by premature
+    speculations. I know not whose paper it is, but there it is
+    [_throwing it down on the table_]. Let him who owns it, take it."
+
+He then bowed, picked up his hat and left the room with such evidences
+of annoyance that, like school-children, no delegate was willing to
+admit the ownership of the paper.
+
+The thought suggests itself: How different the result at Versailles and
+Genoa might have been had there been the same reasonable provisions for
+discussion and action uninfluenced by too premature public comment of
+the day! In these days, when representative government has degenerated
+into government by a fleeting public opinion, the price we pay for such
+government by, for and of the Press, is too often the inability of
+representatives to do what they deem wise and just.
+
+At the close of the convention its records were committed into the
+keeping of Washington, with instructions to "retain the journal and
+other papers, subject to order of Congress, if ever formed under the
+Constitution."
+
+Even the journal consisted of little more than daily memoranda, from
+which the minutes ought to have been, but never were, made; and these
+fragmentary records of the proceedings of a convention which had been in
+continuous session for nearly four months were never published until the
+year 1819, or thirty-two years after the close of the convention. Thus,
+the American people knew nothing of their greatest convention until a
+generation later, and then only a few bones of the mastodon were
+exhibited to their curious gaze.
+
+The members of the convention kept its secrets inviolate for many years.
+With few exceptions, the great secrets of the convention died with them.
+Only one, James Madison, left a comprehensive statement of the more
+formal proceedings. With this notable exception, only a few anecdotes,
+handed down by tradition, escaped oblivion. The first of the number to
+break the pledge of secrecy was Robert Yates, Chief Justice of New York,
+who, in 1821, published his recollections; but, as he had left the
+convention a few months after it began, his notes ceased with the 5th of
+July.
+
+The world would thus have been for ever ignorant of the details of one
+of the most remarkable conventions in the annals of mankind had it not
+been that one of the ablest of their number, James Madison, regularly
+attended the sessions and kept notes from day to day of the debates.
+While he was not a stenographer, he had a gift for condensing a speech
+and fairly representing its substance. He jealously guarded his Journal
+of the Convention until his death. Its very existence was known to few.
+He died in 1836, and four years later the government purchased the
+manuscript from his widow. Then, for the first time, the curtain was
+measurably raised upon the proceedings of a convention which had
+created, as we now know, one of the greatest nations in history.
+Fifty-three years after the close of the convention, and when nearly
+every one of its participants were dead, Madison's Journal was first
+published.
+
+When was a great secret better kept? Grateful as posterity must be for
+this inestimable gift of great human enterprise, yet even Madison's
+careful journal fills one with the deepest regret that this wonderful
+debate, which lasted for nearly four months between men of no ordinary
+ability, could not have been preserved to the world.
+
+Two or three of the speeches which Madison gives in his Journal are
+complete, for when Doctor Franklin spoke he reduced his remarks to
+writing and gave a copy to Madison, but of the other speeches only a
+fragrant remains. Thus, that "admirable Crichton," Alexander Hamilton,
+addressed the convention in a speech that lasted five hours, in which he
+stated his philosophy of government, but of that only a short
+condensation, and possibly not even an accurate fragment, remains.
+
+Without this extraordinary provision for secrecy, which is so opposed to
+modern democratic conventions, and which so little resembles the famous
+point as to "open covenants openly arrived at," the convention could not
+have accomplished its great work, for these wise men realized that a
+statesman cannot act wisely under the observation of a gallery, and
+especially when the gallery compels him by the pressure of public
+opinion to work as it directs. I recognize that public opinion--often
+temporarily uninformed but in the end generally right--does often save
+the democracies of the world from the selfish ends of self-seeking and
+misguided leadership; but, given noble and wise representatives, they
+work best when least influenced by the fleeting passions of the day.
+
+It is evident that if the framers of the Constitution had met, as
+similar conventions have within recent years met at Versailles and
+Genoa, with the world as their gallery and with the representatives of
+the Press as an integral part of the conference, they would have
+accomplished nothing. The probability is that the convention would not
+have lasted a month if their immediate purpose had been to placate
+current opinion. It may be doubted whether such a convention, if called
+to-day, either in your country or mine, could achieve like results, for
+in this day of unlimited publicity, when men divide not as individuals
+but in powerful and organized groups, a constitutional convention would,
+I fear, prove a witches' cauldron of class legislation and demagoguery.
+Is it not possible that modern democracy is in danger of strangulation
+by its present-day methods and ideals? Again the words of Washington
+suggest themselves: "If, to please the people, we offer what we
+ourselves disapprove, how can we afterwards defend our work? Let us
+raise a standard to which the wise and just can repair."
+
+Working with a sad sincerity and with despair in their hearts, this
+little band of men wrought a work of surpassing importance, and if they
+did not receive the immediate plaudits of the living generation, their
+shades can at least solace themselves with the reflection that posterity
+has acclaimed their work as one of the greatest political achievements
+of man.
+
+The rules of order and the nature of the proceedings thus determined,
+the convention opened by an address by Mr. Randolph of Virginia, in
+which he submitted, in the form of fifteen points--nearly the number of
+the fatal fourteen--the outlines for a new government. He himself in his
+opening speech summarized the propositions by candidly confessing "that
+they were not intended for a federal government" (thereby meaning a mere
+league of States) but "a strong consolidated union." Upon this radical
+change the convention was to argue earnestly and at times bitterly for
+many a weary day. The plan provided for a national legislature of which
+the lower branch should be elected by the people and the upper branch by
+the lower branch upon the nomination of the legislatures of the States.
+This legislature should enjoy all the legislative rights given to the
+federation, and there followed the sweeping grant that it "could
+legislate in all cases to which the separate States are incompetent or
+in which the harmony of the United States may be interrupted by the
+exercise of individual legislation," with power "to negative all laws
+passed by the several States contravening in the opinion of the national
+legislature the Articles of the Union."
+
+A national executive was proposed, together with a national judiciary,
+and these two bodies were given authority "to examine every act of the
+national legislature before it shall operate and every act of a
+particular legislature before a negative thereon shall be final." This
+marked an immense advance over the Articles of Confederation, under
+which there was no national executive or judiciary, and under which the
+legislature had no direct power over the citizens of the States, and
+could only impose duties upon the States themselves by the concurrence
+of nine of the thirteen.
+
+Hardly had Mr. Randolph submitted the so-called Virginia plan when
+Charles Pinckney, of South Carolina, a young man of twenty-nine years
+of age, with the courage of youth submitted to the House a draft of the
+future federal government. Curiously enough, it did not differ in
+principle from the Virginia plan, but was more specific and concrete in
+stating the powers which the federal government should exercise, and
+many of its provisions were embodied in the final draft. Indeed,
+Pinckney's plan was the future Constitution of the United States in
+embryo; and when it is read and contrasted with the document which has
+so justly won the acclaim of men throughout the world, it is amazing
+that so young a man should have anticipated and reduced to a concrete
+and effective form many of the most novel features of the Federal
+Government. As the only copy of Pinckney's plan was furnished years
+afterwards to Madison for his journal, it is possible that some of its
+wisdom was of the _post factum_ variety.
+
+Having received the two plans, the convention then went, on May 30,
+into a committee of the whole to consider the fifteen propositions in
+the Virginia plan _seriatim_. They wisely concluded to determine
+abstract ideas first and concrete forms later. Apparently for the time
+being little attention was paid to Pinckney's plan, and this may have
+been due to the hostile attitude of the older members of the convention
+to the presumption of his youth.
+
+Then ensued a very remarkable debate on the immediate propositions and
+the principles of government which underlay them, which lasted for two
+weeks. On June 13 the committee rose. Even the fragments of this debate,
+which may well have been one of the most notable in history, indicate
+the care with which the members had studied governments of ancient and
+modern times. There were many points of difference, but chief of them,
+which nearly resulted in the collapse of the convention, was the
+inevitable difficulty which always arises in the formation of a league
+of States or an association of nations between the great and the little
+States.
+
+The five larger States had a population that was nearly twice as great
+as the remaining eight States. Thus Virginia's population was nearly
+ten-fold as great as Georgia. Moreover, the States differed greatly in
+their material wealth and power. Nevertheless, all of them entered the
+convention as independent sovereign nations, and the smaller nations
+contended that the equality in suffrage and political power which
+prevailed in the convention (in which each State, large or small, voted
+as a unit), should and must be preserved in the future government. To
+this the larger States were quite unwilling to yield, and when the
+committee rose they reported, in substance, the Virginia plan, with the
+proviso that representation in the proposed double-chambered Congress
+should be "according to some equitable ratio of representation."
+
+On June 15 the small States presented their draft, which was afterwards
+known as the New Jersey plan, because it was introduced by Mr. Patterson
+of that State. It only contemplated an amendment to the existing
+Constitution and an amplification of the powers of the impotent
+Confederation. Its chief advance over the existing government was that
+it provided for a federal executive and a federal judiciary, but
+otherwise the government remained a mere league of States, in which the
+central government could generally act only by the vote of nine States,
+and in which their power was exhausted when they requested the States to
+enforce the decrees. Its chief advance over the Articles of
+Confederation, in addition to the creation of an executive, was an
+assertion that the acts of Congress "shall be the supreme law of the
+respective States ... and that the judiciary of the several States shall
+be bound thereby in their decisions," and that "if any State or any
+body of men in any State shall oppose or prevent the carrying into
+execution of such acts or treaties the federal executive shall be
+authorized to call forth the power of the confederated States ... to
+enforce and compel obedience to such acts or an observance of such
+treaties."
+
+While this was some advance toward a truly national government, it yet
+left the national executive dependent upon the constituent States, for
+if they failed to respond to the call above stated the national
+government had no direct power over their citizens.
+
+The New Jersey plan precipitated a crisis, and thereafter, and for many
+days, the argument proceeded, only to increase in bitterness.
+
+On June 18 Alexander Hamilton, who agreed with no one else, addressed
+the convention for the first time. He spoke for five hours and reviewed
+exhaustively the Virginia and New Jersey plans, and possibly the
+Pinckney draft. Even the fragment of the speech, as taken in long-hand
+by Madison, shows that it was a masterly argument. He stated his belief
+"that the British Government was the best in the world and that he
+doubted much whether anything short of it would do in America." He
+praised the British Constitution, quoting Monsieur Necker as saying that
+"it was the only government in the world which unites government
+strength with individual security." He analysed and explained your
+Constitution as it then was and advocated an elective monarchy in form
+though not in name. It is true that he called the executive a "governor"
+and not a king, but the governor, so-called, was to serve for life and
+was given not only "a negative on all laws about to be passed," but even
+the execution of all duly enacted laws was in his discretion. The
+governor, with the consent of the Senate, was to make war, conclude all
+treaties, make all appointments, pardon all offences, with the full
+power through his negative of saying what laws should be passed and
+which enforced. Hamilton's governor would have been not dissimilar to
+Louis XIV, and could have said with him, "_L'état, c'est moi_!" The
+Senate also served for life, and the only concession which Hamilton made
+to democracy was an elective house of representatives. Thinly veiled,
+his plan contemplated an elective king with greater powers than those of
+George III, an imitation House of Lords and a popular House of Commons
+with a limited tenure.
+
+Hamilton's plan was never taken seriously and, so far as the records
+show, was never afterwards considered. His admirers have given great
+praise to his work in the federal convention. His real contribution lay
+in the fact that when the Constitution was finally drafted and offered
+to the people, while he regarded it as a "wretched makeshift," to use
+his own expression, yet he was broad and patriotic enough to surrender
+his own views and advocate the adoption of the Constitution. In so
+doing, he fought a valorous fight, secured the acquiescence of the State
+of New York, and without its ratification the Constitution would never
+have been adopted. Hamilton later thought better of the Constitution,
+and its successful beginning is due in large measure to his genius for
+constructive administration.
+
+As the debate proceeded, the crisis precipitated by the seemingly
+insoluble differences between the great and little States became more
+acute. The smaller States contended that the convention was
+transgressing its powers, and they demanded that the credentials of the
+various members be read. In this there was technical accuracy, for the
+delegates had been appointed to revise the Articles of Confederation and
+not to adopt a new Constitution. A majority of the convention, however,
+insisted upon the convention proceeding with the consideration of a new
+Constitution, and their views prevailed. It speaks well for the honour
+of the delegates that although their differences became so acute as to
+lead at times to bitter expressions, neither side divulged them to the
+outside public. The smaller States could easily have ended the
+convention by an appeal to public opinion, which was not then prepared
+for a "consolidated union," but they were loyal enough to fight out
+their quarrels within the walls of the convention hall.
+
+At times the debate became bitter in the extreme. James Wilson, a
+delegate of Pennsylvania and a Scotchman by birth and education, turning
+to the representatives of the little States, passionately said:
+
+    "Will you abandon a country to which you are bound by so many strong
+    and enduring ties? Should the event happen, it will neither stagger
+    my sentiments nor duty. If the minority of the people refuse to
+    coalesce with the majority on just and proper principles, if a
+    separation must take place, it could never happen on better
+    grounds."
+
+He referred to the demand of the larger States that representation
+should be proportioned to the population. To this Bedford, of Delaware,
+as heatedly replied;
+
+    "We have been told with a dictatorial air that this is the last
+    moment for a fair trial in favour of good government. It will be the
+    last, indeed, if the propositions reported by the committee go forth
+    to the people. The large States dare not dissolve the convention. If
+    they do, the small ones will find some foreign ally of more honour
+    and good faith, who will take them by the hand and do them justice."
+
+Finally, the smaller States gave their ultimatum to the larger States
+that unless representation in both branches of the proposed legislature
+should be on the basis of equality--each State, whether large or small,
+having one vote--they would forthwith leave the convention. An
+eye-witness says that, at that moment, Washington, who was in the chair,
+gave old Doctor Franklin a significant look. Franklin arose and moved an
+adjournment for forty-eight hours, with the understanding that the
+delegates should confer with those with whom they disagreed rather than
+with those with whom they agreed.
+
+A recess was taken, and when the convention re-convened on July 2, a
+vote was taken as to equality of representation in the Senate and
+resulted in a tie vote. It was then decided to appoint a committee of
+eleven, one from each State, to consider the question, and this
+committee reported three days later, on July 5, in favour of
+proportionate representation in the House and equal representation in
+the Senate. This suggestion, which finally saved the situation, was due
+to that wise old utilitarian philosopher, Franklin. Again, a vehement
+and passionate debate followed. Vague references were made to the sword
+as the only method of solving the difference.
+
+On July 9 the committee again reported, maintaining the principle of
+their recommendation, while modifying its details, and the debate then
+turned upon the question to what extent the negro slaves should count in
+estimating population for the purposes of proportionate representation
+in the lower House. Various suggestions were made to base representation
+upon wealth or taxation and not upon population. For several days the
+debate lasted during very heated weather, but on the night of July 12
+the temperature dropped and with it the emotional temperature of the
+delegates.
+
+Some days previous, namely, June 28, when the debates were becoming so
+bitter that it seemed unlikely that the convention could continue,
+Doctor Franklin, erroneously supposed by many to be an atheist, made
+the following solemn and beautiful appeal to their better natures. He
+said:
+
+    "The small progress we have made after four or five weeks' close
+    attendance and continual reasonings with each other--our different
+    sentiments on almost every question, several of the last producing
+    as many noes as ayes, is, methinks, a melancholy proof of the
+    imperfection of the human understanding. We indeed seem to feel our
+    own want of political wisdom, since we have been running about in
+    search of it. We have gone back to ancient history for models of
+    government, and examined the different forms of those Republics
+    which, having been formed with the seeds of their own dissolution,
+    now no longer exist. And we have viewed modern States all around
+    Europe, but find none of their constitutions suitable to our
+    circumstances.
+
+    "In this situation of this Assembly, groping as it were in the dark
+    to find political truth, and scarce able to distinguish it when
+    presented to us, how has it happened, sir, that we have not hitherto
+    once thought of humbly applying to the Father of Lights to
+    illuminate our understandings?... And have we now forgotten that
+    powerful Friend or do we imagine that we no longer need His
+    assistance? I have lived, sir, a long time, and the longer I live,
+    the more convincing proofs I see of this truth: That _God governs in
+    the affairs of men_. And if a sparrow cannot fall to the ground
+    without His notice, is it probable that an empire can rise without
+    His aid? We have been assured, sir, in the sacred writings, that
+    'except the Lord build the House they labour in vain that build it.'
+    I firmly believe this; and I also believe that without His
+    concurring aid we shall succeed in this political building no better
+    than the builders of Babel. We shall be divided by our little
+    partial local interests; our projects will be confounded, and we
+    ourselves shall become a reproach and byword down to future ages.
+    And what is worse, mankind may hereafter from this unfortunate
+    instance, despair of establishing governments by human wisdom and
+    leave it to chance, war, and conquest.
+
+    "I therefore beg leave to move that henceforth prayers imploring the
+    assistance of Heaven, and its blessings on our deliberations, be
+    held in this Assembly every morning before we proceed to business,
+    and that one or more of the clergy of this city be requested to
+    officiate in that service."
+
+It may surprise my audience to know the sequel. The resolution was voted
+down, partly on the ground that if it became known to the public that
+the convention had finally resorted to prayers it might cause undue
+alarm, but also because the convention was by that time so low in funds
+that, as one of the members said, it did not have enough money to pay a
+clergyman his fees for the service. I suspect that their controlling
+reason was their indisposition to break their self-imposed rule of
+secrecy by contact with the outer world until their work was completed.
+Perhaps they thought that "God helps those who help themselves."
+
+On July 16 the compromise was finally adopted of recognizing the claims
+of the larger States to proportionate representation in the House of
+Representatives, and recognizing the claims of the smaller States by
+according to them equal representation in the Senate. This great result
+was not effected without the first break in the convention, for the
+delegates from New York left in disgust and never returned, with the
+exception of Hamilton, who occasionally attended subsequent sessions.
+Such was the great concession that was made to secure the Constitution;
+and the only respect in which the Constitution to-day cannot be amended
+is that by express provision the equality of representation in the
+Senate shall never be disturbed. Thus it is that to-day some States,
+which have less population than some of the wards in the city of New
+York, have as many votes in the Senate as the great State of New York.
+It is unquestionably a palpable negation of majority rule, for as no
+measure can become a law without the concurrence of the Senate--now
+numbering ninety-six Senators--a combination of the little States, whoso
+aggregate population is not a fifth of the American people, can defeat
+the will of the remaining four-fifths. Pennsylvania and New York, with
+nearly one-sixth of the entire population of the United States, have
+only four votes in ninety-six votes in the Senate.
+
+Fortunately, political alignments have rarely been between the greater
+and the smaller States exclusively. Their equality in the Senate was a
+big price to pay for the Union, but, as the event has shown, not too
+great.
+
+The convention next turned its attention to the Executive and the manner
+of its selection, and upon this point there was the widest contrariety
+of view, but, fortunately, without the acute feeling that the relative
+power of the States had occasioned.
+
+Then the judiciary article was taken up, and there was much earnest
+discussion as to whether the new Constitution should embody the French
+idea of giving to the judiciary, in conjunction with the Executive, a
+revisory power over legislation. Three times the convention voted upon
+this dangerous proposition, and on one occasion it was only defeated by
+a single vote. Fortunately, the good sense of the convention rejected a
+proposition, that had caused in France constant conflicts between the
+Executive and the Judiciary, by substituting the right of the President
+to veto congressional legislation, with the right of Congress, by a
+two-thirds vote of each House, to override the veto, and secondly by an
+implied power in the Judiciary to annul Congressional or State
+legislation, not on the grounds of policy, but on the sole ground of
+inconsistency with the paramount law of the Constitution. In this
+adjustment, the influence of Montesquieu was evident.
+
+These and many practical details had resulted in an expansion of the
+fifteen proposals of the Virginia plan to twenty-three.
+
+Having thus determined the general principles that should guide them in
+their labours, the convention, on July 26 appointed a Committee on
+Detail to embody these propositions in the formal draft of a
+Constitution and adjourned until August 6 to await its report. That
+report, when finally completed, covered seven folio pages, and was found
+to consist of a Preamble and twenty-three Articles, embodying
+forty-three sections. The draft did not slavishly follow the Virginia
+propositions, for the committee embodied some valuable suggestions which
+had occurred to them in their deliberations. Nevertheless, it
+substantially put the Virginia plan into a workable plan which proved to
+be the Constitution of the United States in embryo.
+
+When the committee on detail had made its report on August 6, the
+convention proceeded for over a month to debate it with the most minute
+care. Every day for five weeks, for five hours each day, the members
+studied and debated with meticulous care every sentence of the proposed
+Constitution. Time does not suffice even for the barest statement of the
+many interesting questions which were thus discussed, but they nearly
+ran the whole gamut of constitutional government. Many fanciful ideas
+were suggested but with unvarying good sense they were rejected. Some of
+the results were, under the circumstances, curious. For example,
+although it was a convention of comparatively young men, and although
+the convention could have taken into account the many successful young
+men in public life in Europe--as, for example, William Pitt--they put a
+disqualification upon age by providing that a Representative must be
+twenty-five years of age, a Senator thirty years of age, and a President
+thirty-five years of age. When it was suggested that young men could
+learn by admission to public life, the sententious reply was made that,
+while they could, they ought not to have their education at the public
+expense.
+
+The debates proceeded, however, in better temper, and almost the only
+question that again gave rise to passionate argument was that of
+slavery. The extreme Southern States declared that they would never
+accept the new plan "except the right to import slaves be untouched."
+This question was finally compromised by agreeing that the importation
+of slaves should end after the year 1808. It however left the slave
+population then existing in a state of bondage, and for this necessary
+compromise the nation seventy-five years later was to pay dearly by one
+of the most destructive civil wars in the annals of mankind.
+
+August was now drawing to a close. The convention had been in session
+for more than three months. Of its work the public knew nothing, and
+this notwithstanding the acute interest which the American people, not
+merely facing the peril of anarchy, but actually suffering from it, must
+have taken in the convention. Its vital importance was not
+under-estimated. While its builders, like all master builders, did
+"build better than they knew," yet it cannot be said that they
+under-estimated the importance of their labours. As one of their number,
+Gouveneur Morris said: "The whole human race will be affected by the
+proceedings of this convention." After it adjourned one of its greatest
+participants, James Wilson, of Pennsylvania, said:
+
+    "After the lapse of six thousand years since the creation of the
+    world, America now presents the first instance of a people assembled
+    to say deliberately and calmly and to decide leisurely and peaceably
+    on the form of government by which they will bind themselves and
+    their posterity."
+
+In the absence of any authentic information, the rumour spread through
+the colonies that the convention was about to reconstitute a monarchy by
+inviting the second son of George III, the Bishop of Osnaburg, to be
+King of the United States; and these rumours became so persistent as to
+evoke from the silent convention a semi-official denial. There is some
+reason to believe that a minority of the convention did see in the
+restoration of a constitutional monarchy the only solution of the
+problem.
+
+On September 8 the committee had finally considered and, after
+modifications, approved the draft of the Committee on Detail, and a new
+committee was thereupon appointed "to revise the style of and arrange
+the articles that had been agreed to by the House." This committee was
+one of exceptional strength. There were Dr. William Samuel Johnson, a
+graduate of Oxford and a friend of his great namesake, Samuel Johnson;
+Alexander Hamilton, Gouveneur Morris, a brilliant mind with an unusual
+gift for lucid expression; James Madison, a true scholar in politics,
+and Rufus King, an orator who, in the inflated language of the day, "was
+ranked among the luminaries of the present age."
+
+The convention then adjourned to await the final revision of the draft
+by the Committee on Style.
+
+On September 12 the committee reported. While it is not certain, it is
+believed that its work was largely that of Gouveneur Morris.
+
+September 13 the printed copies of the report of the Committee on Style
+were ready, and three more days were spent by the convention in
+carefully comparing each article and section of this final draft.
+
+On September 15 the work of drafting the Constitution was regarded as
+ended, and it was adopted and ordered to be engrossed for signing.
+
+It may be interesting at this point to give the result of their labours
+as measured in words, and if the framers of the Constitution deserve the
+plaudits of posterity in no other respect they do in the remarkable
+self-restraint which those results revealed.
+
+The convention had been in session for 81 continuous days. Probably
+they had consumed over 300 hours in debate. If their debates had been
+fully reported, they would probably have filled at least fifty volumes,
+and yet the net result of their labours consisted of about 4,000 words,
+89 sentences, and about 140 distinct provisions. As the late Lord Bryce,
+speaking in this age of unbridled expression, both oral and printed, so
+well has said:
+
+    "The Constitution of the United States, including the amendments,
+    may be read aloud in twenty-three minutes. It is about half as long
+    as Saint Paul's Epistle to the Corinthians, and one-fourth as long
+    as the Irish Land Act of 1881. History knows few instruments which
+    in so few words lay down equally momentous rules on a vast range of
+    matters of the highest importance and complexity."
+
+Even including the nineteen amendments, the Constitution, after one
+hundred and thirty-five years of development, does not exceed 7,000
+words. What admirable self-restraint! Possibly single opinions of the
+Supreme Court could be cited which are as long as the whole document of
+which they are interpreting a single phrase. This does not argue that
+the Constitution is an obscure document, for it would be difficult to
+cite any political document in the annals of mankind that was so simple
+and lucid in expression. There is nothing Johnsonese about its style.
+Every word is a word of plain speech, the ordinary meaning of which even
+the man in the street knows. No tautology is to be found and no attempt
+at ornate expression. It is a model of simplicity, and as it flows
+through the reaches of history it will always excite the admiration of
+those who love clarity and not rhetorical excesses. One can say of it as
+Horace said of his favourite Spring:
+
+  _O, fons Bandusiae, splendidior vitro.
+  Dulce digne mero, non sine floribus_.
+
+If I be asked why, if this be true, it has required many lengthy
+opinions of the Supreme Court in the 256 volumes of its Reports to
+interpret its meaning, the answer is that, as with the simple sayings of
+the great Galilean, whose words have likewise been the subject of
+unending commentary, the question is not one of clarity but of
+adaptation of the meaning to the ever-changing conditions of human life.
+Moreover, as with the sayings of the Master or the unequalled verse of
+Shakespeare, questions of construction are more due to the commentators
+than to the text itself.
+
+On September 17 the convention met for the last time. The document was
+engrossed and laid before the members for signature. Of the fifty-five
+members who had attended, only thirty-nine remained. Of those, a number
+were unwilling to sign as individuals. While the members had not been
+unconscious of the magnitude of their labours, they were quite
+insensible of the magnitude of their achievement. Few there were of the
+convention who were enthusiastic about this result. Indeed, as the
+document was ready for signature, it became a grave question whether the
+remnant which remained had sufficient faith in their own work to
+subscribe their names, and if they failed to do so its adoption by the
+people would have been impossible. It was then that Doctor Franklin
+rendered one of the last and greatest services of his life. With
+ingratiating wit and with all the impressiveness that his distinguished
+career inspired, Franklin thus spoke:
+
+    "I confess that there are several parts of this Constitution which I
+    do not at present approve, but I am not sure I shall never approve
+    them. For having lived long I have experienced many instances of
+    being obliged by better information or fuller consideration, to
+    change opinions even on important subjects, which I once thought
+    right, but found to be otherwise. It is therefore that the older I
+    grow, the more apt I am to doubt my own judgment and to pay more
+    respect to the judgment of others. Most men indeed as well as most
+    sects in religion think themselves in possession of all truth, and
+    that wherever others differ from them it is so far error. Steele, a
+    Protestant, in a dedication tells the Pope that the only difference
+    between our Churches in their opinions of the certainty of their
+    doctrines is, the Church of Rome is infallible and the Church of
+    England is never in the wrong. But though many private persons think
+    almost as highly of their own infallibility as of that of their
+    sect, few express it so naturally as a certain French lady, who in a
+    dispute with her sister, said: 'I don't know how it happens, sister,
+    but I meet with nobody but myself that's always in the right.'--_Il
+    n'y a que moi qui a toujours raison_.
+
+    "In these sentiments, sir, I agree to this Constitution with all
+    its faults, if they are such; because I think a general government
+    necessary for us, and there is no form of government but what may be
+    a blessing to the people, if well administered, and I believe
+    further that this is likely to be well administered for a course of
+    years, and can only end in despotism as other forms have done before
+    it, when the people shall become so corrupted as to need despotic
+    government, being incapable of any other. I doubt, too, whether any
+    other convention we can obtain may be able to make a better
+    Constitution. For when you assemble a number of men to have the
+    advantage of their joint wisdom you inevitably assemble with those
+    men all their prejudices, their passions, their errors of opinion,
+    their local interests, and their selfish views. From such an
+    assembly can a perfect production be expected? It therefore
+    astonishes me, sir, to find this system approaching so near to
+    perfection as it does.... Thus, I consent, sir, to this Constitution
+    because I expect no better, and because I am not sure that it is not
+    the best. The opinions I have had of its errors I sacrifice to the
+    public good, I have never whispered a syllable of them abroad.
+    Within these walls they were born and here they shall die. If every
+    one of us in returning to our constituents were to report the
+    objections he has had to it and endeavour to gain partisans in
+    support of them, we might prevent its being generally received, and
+    thereby lost all the salutary effects and great advantages resulting
+    naturally in our favour among foreign nations as well as among
+    ourselves from our real or apparent unanimity.
+
+    "On the whole, sir, I cannot help expressing a wish that every
+    member of the convention who may still have objections to it, would
+    with me, on this occasion doubt a little of his own
+    infallibility--and to make manifest our unanimity, put his name to
+    this instrument."
+
+Truly this spirit of Doctor Franklin could be profitably invoked in this
+day and generation, when nations are so intolerant of the ideas of other
+nations.
+
+As the members, moved by Franklin's humorous and yet moving appeal, came
+forward to subscribe their names, Franklin drew the attention of some of
+the members to the fact that on the back of the President's chair was
+the half disk of a sun, and, with his love of metaphor, he said that
+painters had often found it difficult to distinguish in their art a
+rising from a setting sun. He then prophetically added:
+
+    "I have often and often in the course of the sessions and the
+    vicissitudes of my hopes and fears in its issues, looked at that
+    behind the President without being able to tell whether it was
+    rising or setting. But now at length I have the happiness to know
+    that it is a rising and not a setting sun."
+
+Time has verified the genial doctor's prediction. The career of the new
+nation thus formed has hitherto been a rising and not a setting sun. He
+had in his sixty years of conspicuously useful citizenship--and perhaps
+no nation ever had a more untiring and unselfish servant--done more than
+any American to develop the American Commonwealth, but like Moses, he
+was destined to see the promised land only from afar, for the new
+Government had hardly been inaugurated, before Franklin died, as full of
+years as honours. Prophetic as was his vision, he could never have
+anticipated the reality of to-day, for this nation, thus deliberately
+formed in the light of reason and without blood or passion, is to-day,
+by common consent, one of the greatest and, I trust I may add, one of
+the noblest republics of all time.
+
+
+
+
+_III. The Political Philosophy of the Constitution_
+
+
+In my last address I left Doctor Franklin predicting to the discouraged
+remnant of the constitutional convention that the nation then formed
+would be a "rising sun" in the constellation of the nations. The sun,
+however, was destined to rise through a bank of dark and murky clouds,
+for the Constitution could not take effect until it was ratified by nine
+of the thirteen States; and when it was submitted to the people, who
+selected State conventions for the purpose of ratifying or rejecting the
+proposed plan of government, a bitter controversy at once ensued between
+two political parties, then in process of formation, one called the
+Constitution ratified without controversy. In the remaining ten the
+struggle was long and arduous, and nearly a year passed before the
+requisite nine States gave their assent. Two of the States refused to
+become parts of the new nation, even after it began, and three years
+passed before the thirteen States were re-united under the Constitution.
+
+It could not have been ratified had there not been an assurance that
+there would be immediate amendments to provide a Bill of Rights to
+safeguard the individual. Thus came into existence the first ten
+amendments to the Constitution, with their perpetual guaranty of the
+fundamental rights of religion, freedom of speech and of the Press, the
+right of assemblage, the immunity from unreasonable searches and
+seizures, the right of trial by jury, and similar guarantees of
+fundamental individual rights.
+
+Distrustful as the American people were of the new Constitution, they
+yet had the political sagacity to prefer its imperfections, whatever
+they imagined them to be, to the mad spirit of innovation; and in order
+that the great instrument should not, through the excesses of party
+passion or the temporary caprices of fleeting generations, speedily
+become a mere "scrap of paper" they very wisely provided that no
+amendment should, in the future, be made unless it was proposed by at
+least two-thirds of the Senate and the House of Representatives and
+ratified by three-fourths of the States through their legislatures or
+through special conventions. This was only one of many striking
+negations of the principle of majority rule. As a result of this
+provision, if we count the first ten amendments as virtually part of the
+original document, only nine amendments have been adopted in 185 years,
+and of these, excepting the amendments which ended slavery as the result
+of the Civil War, only the last three, passed in recent years partly
+through the relaxing influence of the world war, mark a serious
+departure from the basic principles of the Constitution.
+
+This stability is the more remarkable when we recall the profound and
+revolutionary change that has taken place in the social life of man
+since the Constitution was adopted. It was framed at the very end of the
+pastoral-agricultural age of humanity. The industrial revolution, which
+has more profoundly affected man in the last century and a half than all
+the changes which had theretofore taken place in the life of man since
+the cave-dweller, was only then beginning. Measured in terms of
+mechanical power, men when the Constitution was formed were Lilliputians
+as compared with the Brobdingnagians of our day, when man outflies the
+eagle, outswims the fish, and by his conquest and utilization of the
+invisible forces of nature has become the superman; and yet the
+Constitution of 1787 is, in most of its essential principles, still the
+Constitution of 1922. This surely marks it as a marvel in statecraft
+and can only be explained by the fact that the Constitution was
+developed by a people who, as "children brave and free of the great
+mother-tongue," had a real genius for self-government and its essential
+element, the spirit of self-restraint.
+
+While it is true that the _text_ of the instrument has suffered almost
+as little change as the Nicene Creed, yet it would be manifest error to
+suggest that in its development by practical application the
+Constitution has not undergone great changes.
+
+The first and greatest of all its expounders, Chief Justice Marshall,
+said, in one of his greatest opinions, that the Constitution was--
+
+    "intended to endure for ages to come, and consequently to be
+    _adapted_ to the various crises of human affairs. To have prescribed
+    the means by which government should in all future times execute
+    its powers would have been to change entirely the character of the
+    instrument and to give it the properties of a legal code. It would
+    have been an unwise attempt to provide by immutable rules for
+    exigencies which, if foreseen at all, must have been foreseen dimly,
+    and can best be provided for as they occur."
+
+In this great purpose of enumerating rather than defining the powers of
+government its framers were supremely wise. While it was marvellously
+sagacious in what it provided, it was wise to the point of inspiration
+in what it left unprovided.
+
+Nothing is more admirable than the self-restraint of men who, venturing
+upon an untried experiment, and after debating for four months upon the
+principles of government, were content to embody their conclusions in
+not more than four thousand words. To this we owe the elasticity of the
+instrument. Its vitality is due to the fact that, by usage, judicial
+interpretation, and, when necessary, formal amendment, it can be thus
+adapted to the ever-accelerating changes of the most progressive age in
+history, and that a people have administered the Constitution who, in
+the process of such adaptation, have generally shown the same spirit of
+conservative self-restraint as did the men who framed it.
+
+The Constitution is neither, on the one hand, a Gibraltar rock, which
+wholly resists the ceaseless washing of time or circumstance, nor is it,
+on the other hand, a sandy beach, which is slowly destroyed by the
+erosion of the waves. It is rather to be likened to a floating dock,
+which, while firmly attached to its moorings, and not therefore the
+caprice of the waves, yet rises and falls with the tide of time and
+circumstance.
+
+While in its practical adaptation to this complex age the men who framed
+it, if they could "revisit the glimpses of the moon," would as little
+recognize their own handiwork as their own nation, yet they would still
+be able to find in successful operation the essential principles which
+they embodied in the document more than a century ago.
+
+Its success is also due to the fact that its framers were little
+influenced by the spirit of doctrinarianism. They were not empiricists,
+but very practical men. This is the more remarkable because they worked
+in a period of an emotional fermentation of human thought. The
+long-repressed intellect of man had broken into a violent eruption like
+that of a seemingly extinct volcano.
+
+From the middle of the eighteenth century until the end of the French
+Revolution the masses everywhere were influenced by the emotional, and
+at times hysterical, abstractions of the French encyclopedists; and that
+these had influenced thought in the American colonies is readily shown
+in the preamble of the Declaration of Independence, with its
+unqualified assertion of the equality of men and the absolute right of
+self-determination. The Declaration sought in its noble idealism to make
+the "world safe for democracy," but the Constitution attempted the
+greater task of making democracy safe for the world by inducing a people
+to impose upon themselves salutary restraints upon majority rule.
+
+Fortunately, the framers of the Constitution had learned a rude and
+terrible lesson in the anarchy that had followed the War of
+Independence. They were not so much concerned about the rights of man as
+about his duties, and their great purpose was to substitute for the
+visionary idealism of a rampant individualism the authority of law. Of
+the hysteria of that time, which was about to culminate in the French
+Revolution, there is no trace in the Constitution.
+
+They were less concerned about Rousseau's social contract than to
+restore law and order. Hard realities and not generous and impossible
+abstractions interested them. They had suffered grievously for more than
+ten years from misrule and had a distaste for mere phrase-making, of
+which they had had a satiety, for the Constitution, in which there is
+not a wasted word, is as cold and dry a document as a problem in
+mathematics or a manual of parliamentary law. Its mandates have the
+simplicity and directness of the Ten Commandments, and, like the
+Decalogue, it consists more of what shall not be done than what shall be
+done. In this freedom from empiricism and sturdy adherence to the
+realities of life, it can be profitably commended to all nations which
+may attempt a similar task.
+
+While the Constitution apparently only deals with the practical and
+essential details of government, yet underlying these simply but
+wonderfully phrased delegations of power is a broad and accurate
+political philosophy, which goes far to state the "law and the
+prophets" of free government.
+
+These essential principles of the Constitution may be briefly summarized
+as follows:
+
+
+
+1.
+
+
+_The first is representative government_.
+
+Nothing is more striking in the debates of the convention than the
+distrust of its members, with few exceptions, of what they called
+"democracy." By this term they meant the power of the people to
+legislate directly and without the intervention of chosen
+representatives. They believed that the utmost concession that could be
+safely made to democracy was the power to select suitable men to
+legislate for the common good, and nothing is more striking in the
+Constitution than the care with which they sought to remove the powers
+of legislation from the _direct_ action of the people. Nowhere in the
+instrument is there a suggestion of the initiative or referendum.
+
+Even an amendment to the Constitution could not be directly proposed by
+the people in the exercise of their residual power or adopted by them.
+As previously said, it could only be proposed by two-thirds of the House
+and the Senate, and then could only become effective, if ratified by
+three-fourths of the States, acting, not by a popular vote, but through
+their chosen representatives either in their legislatures or special
+conventions. Thus they denied the power of a majority to alter even the
+form of government. Moreover, they gave to the President the power to
+nullify laws passed by a majority of the House and Senate by his simple
+veto, and yet, fearful of an unqualified power of the President in this
+respect, they provided that the veto itself should be vetoed, if
+two-thirds of the Senate and House concurred in such action. Moreover,
+the great limitations of the Constitution, which forbid the majority, or
+even the whole body of the House and Senate, to pass laws either for
+want of authority or because they impair fundamental rights of
+individuals, are as emphatic a negation of an absolute democracy as can
+be found in any form of government.
+
+Measured by present-day conventions of democracy, the Constitution is an
+undemocratic document. The framers believed in representative
+government, to which they gave the name "Republicanism" as the
+antithesis to "democracy." The members of the Senate were to be selected
+by State legislatures, and the President himself was, as originally
+planned, to be selected by an electoral college similar to the College
+of Cardinals.
+
+The debates are full of utterances which explain this attitude of mind.
+Mr. Gerry said: "The evils we experience flow from the excesses of
+democracy. The people are the dupes of pretended patriots." Mr.
+Randolph, the author of the Virginia plan, observed that the general
+object of the Constitution was to provide a cure for the evils under
+which the United States laboured; that in tracing these evils to their
+origin every man had found it in the tribulation and follies of
+democracy; that some check, therefore, was to be sought for against this
+tendency of our Government.
+
+Alexander Hamilton remarked, on June 18, that--
+
+    "the members most tenacious of republicanism were as loud as any in
+    declaiming against the evils of democracy."
+
+He added:
+
+    "Give all the power to the many and they will oppress the few. Give
+    all the power to the few and they will oppress the many. Both ought,
+    therefore, to have the power that each may defend itself against the
+    other."
+
+Perhaps the attitude of the members is thus best expressed by James
+Madison, in the 10th of the Federalist papers:
+
+    "A pure democracy, by which I mean a State consisting of a small
+    number of citizens, who assemble and administer the government in
+    person, can admit of no cure for the mischiefs of faction. Such
+    democracies have ever been spectacles of turbulence and contention,
+    and have often been found incompatible with the personal security
+    and rights of property, and have generally been as short in their
+    lives as they have been violent in their deaths."
+
+Undoubtedly, the framers of the Constitution in thus limiting popular
+rule did not take sufficient account of the genius of an
+English-speaking people. A few of their number recognized this.
+Franklin, a self-made man, believed in democracy and doubted the
+efficacy of the Constitution unless it was, like a pyramid, broad-based
+upon the will of the people.
+
+Colonel Mason, of Virginia, who was also of the Jeffersonian school of
+political philosophy, said:
+
+    "Notwithstanding the oppression and injustice experienced among us
+    from democracy, the genius of the people is in favour of it, and the
+    genius of the people must be consulted."
+
+In this they were true prophets, for the American people have refused to
+limit democracy as narrowly and rigidly as the framers of the
+Constitution clearly intended. The most notable illustration of this is
+the selection of the President. It was never contemplated that the
+people should directly select the President, but that a chosen body of
+electors should, with careful deliberation, make this momentous choice.
+While, in form, the system persists to this day, from the very beginning
+the electors simply vote as the people who select them desire. It should
+here be noted that Thomas Jefferson, the great Democrat and draftsman of
+the Declaration of Independence, was not a member of the convention.
+During its sessions he was in France. He was instrumental in securing
+the first ten Amendments and the subsequent adaptation of the
+Constitution to meet the democratic instincts of the American people is
+largely due to his great leadership.
+
+Moreover, the spirit of representative government has greatly changed
+since the Constitution was adopted. The ideal of the earlier time was
+that so nobly expressed by Edmund Burke in his address to the electors
+of Bristol, for the framers believed that a representative held a
+judicial position of the most sacred character, and that he should vote
+as his judgment and conscience dictated without respect to the wishes of
+his constituents. To-day, and notably in the last half century, the
+contrary belief, due largely to Jefferson's political ideals, has so
+influenced American politics that the representatives of the people,
+either in the legislature or the executive departments of the
+government, are considered by the masses as only the mouthpieces of the
+people who select them, and to ignore their wishes is regarded as
+virtually a betrayal of a trust and the negation of democracy.
+
+For this change in attitude there has been much justification, for in my
+country, as elsewhere, the people do not always select their best men as
+representatives, and, with the imperfections of human nature, there has
+been so much of ignorance and, at times, venality, that the instinct of
+the people is to take the conduct of affairs into their own hands. On
+the other hand, this change of attitude has led, in many instances, to
+government by organized minorities, for, with the division of the masses
+into political parties, it is easy for an organized minority to hold the
+balance of power, and thus impress its will upon majorities. Time may
+yet vindicate the theory of the framers that the limit of democracy is
+the selection of true and tried representatives.
+
+
+
+2.
+
+
+_The second and most novel principle of the Constitution is its dual
+form of Government._
+
+This did constitute a unique contribution to the science of politics.
+This was early recognized by de Tocqueville, one of the most acute
+students of the Constitution, who said that it was based "upon a wholly,
+novel theory, which may be considered a great discovery in modern
+political science."
+
+Previous to the Constitution it had not been thought possible to divide
+sovereignty, or at least to have two different sovereignties moving as
+planets in the same orbit. Therefore, all previous federated governments
+had been based upon the plan that a league could only effect its will
+through the constituent States and that the citizens in these States
+owed no direct allegiance to the league, but only to the States of which
+they were members. The Constitution, however, developed the idea of a
+dual citizenship. While the people remained citizens of their respective
+States in the sphere of government which was reserved to the States, yet
+they directly became citizens of the central government, and, as such,
+ceased to be citizens of the several States in the sphere of government
+delegated to the central power; and this allegiance was enforced by the
+direct action of the central government on the citizens as individuals.
+Thus has been developed one of the most intricately complex governmental
+systems in the world.
+
+At the time of the adoption of the Constitution this division of
+jurisdiction was quite feasible, for, geographically, the various States
+were widely separated, and the lack of economic contact made it easy for
+each government to function without serious conflict. The framers,
+however, did not sufficiently reckon with the mechanical changes in
+society that were then beginning. They did not anticipate, and could not
+have anticipated, the centripetal influences of steam and electricity
+which have woven the American people into an indissoluble unit for
+commercial and many other purposes. As a result many laws of the Federal
+Government, in their incidences in this complex age, directly impinge
+upon rights of the State governments, and _vice versa_, and the
+practical application of the Constitution has required a very subtle
+adaptation of a form of government which was enacted in a primitive age
+to a form of government of a complex age.
+
+Take, for example, the power over commerce. According to the
+Constitution, the Federal Government had plenary power over foreign
+commerce and commerce _between_ the States, but the power over commerce
+_within_ a State was reserved to State governments. This presupposed the
+power of Government to divide commerce into two water-tight
+compartments, or, at least, to regard the two spheres of power as
+parallel lines that would never meet; whereas with the coming of the
+railroad, steamship and the telegraph commerce has become so unified
+that the parallel lines have become lines of interlacing zigzags. To
+adapt the commerce clause of the Constitution to these changed
+conditions has required, in the highest degree, the constructive genius
+of the Supreme Court of the United States, and, in a series of very
+remarkable decisions, which are contained in 256 volumes of the official
+reports, that great tribunal has tried to draw a line between
+inter-State and domestic commerce as nearly to the original plans of the
+framers as it was possible; but obviously there has been so much
+adaptation to make this possible that if Washington, Franklin, Madison
+and Hamilton could revisit the nation they created they would not
+recognize their own handiwork.
+
+For the same reason, the dual system of government has been profoundly
+modified by the great elemental forces of our mechanical age, so that
+the scales, which try to hold in nice equipoise the Federal Government
+on the one hand and the States on the other, have been greatly
+disturbed. Originally, the States were the powerful political entities,
+and the central government a mere agent for certain specific purposes;
+but, in the development of the Constitution, the nation has naturally
+become of overshadowing importance, while the States have relatively
+steadily diminished in power and prestige.
+
+These inevitable tendencies in American politics are called
+"centralization," and while for nearly a century a great political party
+bitterly contested its steady progress, due to the centripetal
+influences above indicated, yet the contest was long since abandoned as
+a hopeless one, and the struggle to-day is rather to keep, so far as
+possible, the inevitable tendency measurably in check.
+
+Nevertheless, it would be erroneous to suggest that the dual system of
+government is a failure. It still endures in providing a large measure
+of authority to the States in their purely domestic concerns, and, in a
+country that extends from the Atlantic to the Pacific, and from the
+Lakes to the Gulf, whose northern border is not very far from the Arctic
+Circle, and whose southern border is not many degrees from the Equator,
+there are such differences in the habits, conventions, and ideals of the
+people that without this dual form of government the Constitution would
+long since have broken down. It is not too much to say that the success
+with which the framers of the Constitution reconciled national supremacy
+and efficiency with local self-government is one of the great
+achievements in the history of mankind.
+
+
+
+3.
+
+
+_The third principle was the guaranty of individual liberty through
+constitutional limitations._
+
+This marked another great contribution of America to the science of
+government. In all previous government building, the State was regarded
+as a sovereign, which could grant to individuals or classes, out of its
+plenary power, certain privileges or exemptions, which were called
+"liberties." Thus the liberties which the barons wrung from King John at
+Runnymede were virtually exemptions from the power of government. Our
+fathers did not believe in the sovereignty of the State in the sense of
+absolute power, nor did they believe in the sovereignty of the people in
+that sense. The word "sovereignty" will not be found in the Constitution
+or the Declaration of Independence. They believed that each individual,
+as a responsible moral being, had certain "inalienable rights" which
+neither the State nor the people could rightfully take from him.
+
+This conception of individualism, enforced in courts of law against
+executives and legislatures, was wholly new and is the distinguishing
+characteristic of American constitutionalism. As to such reserved
+rights, guaranteed by Constitutional limitations, and largely by the
+first ten amendments to the Constitution, a man, by virtue of his
+inherent and God-given dignity as a human soul, has rights, such as
+freedom of the Press, liberty of speech, property rights, and religious
+freedom, which even one hundred millions of people cannot rightfully
+take from him, without amending the Constitution. The framers did not
+believe that the oil of anointing that was supposed to sanctify the
+monarch and give him infallibility had fallen upon the "multitudinous
+tongue" of the people to give it either infallibility or omnipotence.
+They believed in individualism. They were animated by a sleepless
+jealousy of governmental power. They believed that the greater such
+power, the greater the danger of its abuse. They felt that the
+individual could generally best work out his own salvation, and that his
+constant prayer to Government was that of Diogenes to Alexander: "Keep
+out of my sunlight." The worth and dignity of the human soul, the free
+competition of man and man, the nobility of labour, the right to work,
+free from the tyranny of state or class, this was their gospel.
+Socialism was to them abhorrent.
+
+This theory of government gave a new dignity to manhood. It said to the
+State: "There is a limit to your power. Thus far and no further, and
+here shall thy proud waves be stayed."
+
+
+
+4.
+
+
+_Closely allied to this doctrine of limited governmental powers, even by
+a majority, is the fourth principle of an independent judiciary_.
+
+It is the balance wheel of the Constitution, and to function it must be
+beyond the possibility of attack and destruction. My country was founded
+upon the rock of property rights and the sanctity of contracts. Both the
+nation and the several States are forbidden to impair the obligation of
+contracts, or take away life, liberty, or property "without due process
+of law." The guarantee is as old as Magna Charta; for "due process of
+law" is but a paraphrase of "the law of the land," without which no
+freeman could be deprived of his liberties or possessions.
+
+"Due process of law" means that there are certain fundamental principles
+of liberty, not defined or even enumerated in the Constitution, but
+having their sanction in the free and enlightened conscience of just
+men, and that no man can be deprived of life, liberty, or property,
+except in conformity with these fundamental decencies of liberty. To
+protect these even against the will of a majority, however large, the
+judiciary was given unprecedented powers. It threw about the individual
+the solemn circle of the law. It made the judiciary the final conscience
+of the nation. Your nation cherishes the same primal verities of
+liberty, but with you, the people in Parliament, is the final judge. We,
+however, are not content that a majority of the Legislature shall
+override inviolable individual rights, about which the judiciary is
+empowered to throw the solemn circle of the law.
+
+This august power has won the admiration of the world, and by many is
+regarded as a novel contribution to the science of government. The idea,
+however, was not wholly novel. As previously shown, four Chief Justices
+of England had declared that an Act of Parliament, if against common
+right and reason, could be treated as null and void; while in France the
+power of the judiciary to refuse efficacy to a law, unless sanctioned by
+the judiciary, had been the cause of a long struggle for at least three
+centuries between the French monarch and the courts of France. However,
+in England the doctrine of the common law yielded to the later doctrine
+of the omnipotence of Parliament, while in France the revisory power of
+the judiciary was terminated by the French Revolution.
+
+The United States, however, embodied it in its form of government and
+thus made the judiciary, and especially the Supreme Court, the balance
+wheel of the Constitution. Without such power the Constitution could
+never have lasted, for neither executive officers nor legislatures are
+good judges of the extent of their own powers.
+
+Nothing more strikingly shows the spirit of unity which the Constitution
+brought into being than the unbroken success with which the Supreme
+Court has discharged this difficult and most delicate duty. The
+President is the Commander-in-Chief of the Army and the Navy and can
+call them to his aid. The legislature has almost unlimited power through
+its control of the public purse. The States have their power reinforced
+by armed forces, and some of them are as great in population and
+resources as many of the nations of Europe. The Supreme Court, however,
+has only one officer to execute its decrees, called the United States
+Marshal; and yet, without sword or purse, and with only a high sheriff
+to enforce its mandates, when the Supreme Court says to a President or
+to a Congress or to the authorities of a great--and, in some respects,
+sovereign--State that they must do this or must refrain from doing that,
+the mandate is at once obeyed. Here, indeed, is the American ideal of "a
+government of laws and not of men" most strikingly realized; and if the
+American Constitution, as formulated and developed, had done nothing
+else than to establish in this manner the supremacy of law, even as
+against the overwhelming sentiment of the people, it would have
+justified the well-known encomium of Mr. Gladstone.
+
+It must be added, however, that in one respect this function of the
+judiciary has had an unfortunate effect in lessening rather than
+developing in the people the sense of constitutional morality. In your
+country the power of Parliament is omnipotent, and yet in its
+legislation it voluntarily observes these great fundamental decencies
+of liberty which in the American Constitution are protected by formal
+guarantees. This can only be true because either your representatives in
+Parliament have a deep sense of constitutional morality, or that the
+constituencies which select them have so much sense of constitutional
+justice that their representatives dare not disregard these fundamental
+decencies of liberty.
+
+In the United States, however, the confidence that the Supreme Court
+will itself protect these guaranties of liberty has led to a diminution
+of the sense of constitutional morality, both in the people and their
+representatives. It abates the vigilance which is said to be ever the
+price of liberty.
+
+Laws are passed which transgress the limitations of the Constitution
+without adequate discussion as to their unconstitutional character, for
+the reason that the determination of this fact is erroneously supposed
+to be the exclusive function of the judiciary.
+
+The judiciary, contrary to the common supposition, has no plenary power
+to nullify unconstitutional laws. It can only do so when there is an
+irreconcilable and indubitable repugnancy between a law and the
+Constitution; but obviously laws can be passed from motives that are
+anti-constitutional, and there is a wide sphere of political discretion
+in which many acts can be done which, while politically
+anti-constitutional, are not juridically unconstitutional. For this
+reason, the undue dependence upon the judiciary to nullify every law
+which either in form, necessary operation, or motive transgresses the
+Constitution has so far lessened the vigilance of the people to protect
+their own Constitution as to lead to its serious impairment.
+
+
+
+5.
+
+
+_The fifth fundamental principle was a system of governmental checks and
+balances_.
+
+The founders of the Republic were not enamoured of power. As they viewed
+human history, the worst evils of government were due to excessive
+concentration of power, which like Othello's jealousy "makes the meat it
+feeds on."
+
+This system of checks and balances again illustrates that the
+Constitution is the great negation of unrestrained democracy. The
+framers believed that a people was best governed that was least
+governed. Therefore, their purpose was not so much to promote efficiency
+in legislation as to put a brake upon precipitate action.
+
+Time does not suffice to state the intricate system of checks and
+balances whereby the legislature acts as a check upon the executive and
+the executive upon the legislature, and the Supreme Court upon both.
+When the Republic was small, and its public affairs were few, this
+system of checks and balances worked admirably, but to-day, when the
+nation is one of the greatest in the world, and its public affairs are
+of the most important and complicated character, and often require
+speedy action, it may be questioned whether the system is not now an
+undue brake upon governmental efficiency, and does _not_ require some
+modification to ensure efficiency. Indeed, it is a serious question with
+many thoughtful Americans whether the growth of the United States has
+not put an excessive strain upon its governmental machinery.
+
+This system was in part due to the confident belief of the framers of
+the Constitution in the Montesquieu doctrine of the division of
+government into three independent departments--legislative, executive
+and judicial; but experience has shown how difficult it is to apply this
+doctrine in its literal rigidity. One result of the doctrine was the
+mistaken attempt to keep the legislative and the executive as far apart
+as possible. The Cabinet system of parliamentary government was not
+adopted. While the President can appear before Congress and express his
+views, his Cabinet is without such right. In practice, the gulf is
+bridged by constant contact between the Cabinet and the committees of
+Congress, but this does not wholly secure speedy and efficient
+co-operation between the two departments. As I speak, a movement is in
+progress, with the sanction of President Harding, to permit members of
+his Cabinet to appear in Congress and thus defend directly and in person
+the policies of the Executive.
+
+This separation of the two departments, which causes so much friction,
+has been emphasized by one feature of the Constitution which again marks
+its distrust of democracy, namely the fixed tenure of office. The
+Constitution did not intend that public officials should rise or fall
+with the fleeting caprices of a constituency. It preferred to give the
+President and the members of Congress a fixed term of office, and,
+however unpopular they might become temporarily, they should have the
+right and the opportunity to proceed even with unpopular policies, and
+thus challenge the final verdict of the people.
+
+If a parliamentary form of government, immediately responsive to
+current opinion as registered in elections, is the great desideratum,
+then the fixed tenure of offices is the vulnerable Achilles-heel of our
+form of government. In other countries the Executive cannot survive a
+vote of want of confidence by the legislature. In America, the
+President, who is merely the Executive of the legislative will,
+continues for his prescribed term, though he may have wholly lost the
+confidence of the representatives of the people in Congress. While this
+makes for stability in administration and keeps the ship of state on an
+even keel, yet it also leads to the fatalism of our democracy, and often
+the "native hue" of its resolution is thus "sicklied o'er with the pale
+cast of thought." Take a striking instance. I am confident that after
+the sinking of the _Lusitania_, the United States would have entered the
+world war, if President Wilson's tenure of power had then depended upon
+a vote of confidence.
+
+
+
+6.
+
+
+_The sixth fundamental principle is the joint power of the Senate and
+the Executive over the foreign relations of the Government_.
+
+I need not dwell at length upon this unique feature of our
+constitutional system, for since the Versailles Treaty, the world has
+become well acquainted with our peculiar system under which treaties are
+made and war is declared or terminated. Nothing, excepting the principle
+of local rule, was of deeper concern to the framers of the Constitution.
+When it was framed, it was the accepted principle of all other nations
+that the control of the foreign relations of the Government was the
+exclusive prerogative of the Executive. In your country the only
+limitation upon that power was the control of Parliament over the purse
+of the nation, and some of the great struggles in your history related
+to the attempt of the Crown to exact money to carry on the wars without
+a Parliament grant.
+
+The framers were unwilling to lodge any such power in the Executive,
+however great his powers in other respects. This was primarily due to
+the conception of the States that then prevailed. While they had created
+a central government for certain specified purposes, they yet regarded
+themselves as sovereign nations, and their representatives in the Senate
+were, in a sense, their ambassadors. They were as little inclined to
+permit the President of the United States to make treaties or declare
+war at will in their behalf as the European nations would be to-day to
+vest a similar authority in the League of Nations. It was, therefore,
+first proposed that the power to make treaties and appoint diplomatic
+representatives should be vested exclusively in the Senate, but as that
+body was not always in session, this plan was so far modified as to give
+the President, who is always acting, the power to _negotiate_ treaties
+"with the advice and consent of the Senate." As to making war, the
+framers were not willing to entrust the power even to the President and
+the Senators, and it was therefore expressly provided that only Congress
+could take this momentous step.
+
+Here, again, the theory of the Constitution was necessarily somewhat
+modified in practical administration, for under the power of nominating
+diplomatic representatives, negotiating treaties, and in general, of
+executing the laws of the nation, the principle was soon evolved that
+the conduct of foreign affairs was primarily the function of the
+President, with the limitation that the Senate must concur in diplomatic
+appointments and in the validity of treaties, and that only both Houses
+of Congress could jointly declare war. This cumbrous system necessarily
+required that the President in conducting the foreign relations of the
+Government should keep in touch with the Senate, and such was the
+accepted procedure throughout the history of the nation until President
+Wilson saw fit to ignore the Senate, even when the Senate had indicated
+its dissent in advance to some of his policies at the Versailles
+Conference.
+
+I suppose that since that conference no part of our constitutional
+system has caused more adverse comment in Europe than this system. It
+often handicaps the United States from taking a speedy and effectual
+part in international negotiations, although if the President and the
+Senate be in harmony and collaborate in this joint responsibility, there
+is no necessary reason why this should be so.
+
+I share the view of many Americans that this provision of the
+Constitution was wise and salutary, especially at this time, when the
+United States has taken such an important position in the councils of
+civilization. The President is a very powerful Executive, and his
+tenure, while short, is fixed. Generally he is elected by little more
+than a majority of the people, and sometimes through the curious
+workings of the electoral college system, he has been only the choice
+of a minority of the electorate. For these reasons, the framers of the
+Constitution were unwilling to vest in the President exclusively the
+immeasurable power of pledging the faith, man-power, and resources of
+the nation and of declaring war. The heterogeneous character of our
+population especially emphasizes the wisdom of this course, for it would
+be difficult, if not impossible, for an American President to make an
+offensive and defensive alliance with any nation or declare war against
+another nation without running counter to the racial interests and
+passions of a substantial part of the American nation. For better or
+worse, the United States has limited, but not destroyed, as the world
+war showed, its freedom to antagonize powerful nations from whose people
+it has drawn large numbers of its own citizenship. The domestic harmony
+of the nation requires that before the United States assumes treaty
+obligations or makes war such policy shall represent the largely
+preponderating sentiment of its people, and nothing could more
+effectually secure this end than to require the President, before making
+a treaty, to secure the assent of two-thirds of the Senate and a
+majority of both Houses of Congress before making war.
+
+While this may lead, as it has in recent years, to temporary and
+regrettable embarrassments, yet in the long run, it is not only better
+for the United States, but it is even to the best interests of other
+nations, for in this way they are safeguarded against the possible
+action of an Executive with whom racial instincts might still be very
+influential. In your country, where the Government of the day is subject
+to immediate dismissal for want of confidence, such power over foreign
+relations can be safely entrusted to a few men, but in the United
+States, with its fixed tenures of office, a President could pledge the
+faith and involve his nation in war against the interests and will of
+the people. Suppose the President had unlimited power over our foreign
+relations and that within the next ten years an American, whose parents
+were born in any European nation, was elected on purely domestic issues,
+he could, with his assured four years of power, bring about a new
+alignment of nations and shake the political equilibrium of the world.
+The Constitution wisely refused to grant such a power. Hence the
+provision for the concurrence of the legislative representatives of the
+nation. At all events, it constitutes a system which, as the last
+presidential election showed, the American people will not willingly
+forgo. It is true that this system makes it difficult for the United
+States to participate effectively in the main purpose of the League of
+Nations to enforce peace by joint action at Geneva, but to ask the
+United States to surrender a vital part of its constitutional system,
+upon which its domestic peace so largely depends, in order to promote
+the League, seems to me as unreasonable as it would be to ask your
+country to abolish the Crown, to which it is sincerely attached as a
+vital part of its system, as a contribution towards international
+co-operation. You would not surrender such an integral part of your
+system, and therefore it is not reasonable to expect a similar sacrifice
+on our part, even though the meritorious purposes of the League be
+freely recognized.
+
+I have thus summarized briefly and most inadequately some of the
+essential principles of the Constitution. I have only been able to
+suggest very impressionistically what they are and the lessons to be
+drawn from them. If I were able to deliver a dozen addresses on the
+subject in this historic Hall and with this indulgent audience I would
+not scratch even the surface. To understand the Constitution of the
+United States you must not only read the text but the thousands of
+opinions rendered in the last 130 years by the Supreme Court in its
+great task of interpreting this wonderful document. Few documents have
+been the subject of more extended commentaries. The four thousand words
+have been meticulously examined through intellectual microscopes in
+judicial opinions, textbooks, and other commentaries which are as "thick
+as autumnal leaves that strow the brooks in Vallombrosa."
+
+One can say of this document as Dr. Furness, in his variorum edition of
+_Hamlet_, says of the words of that character:
+
+    "No words by him let fall, no syllable by him uttered, but has been
+    caught up and pondered, as no words except those of Holy Writ."
+
+But what of its future and how long will the Constitution wholly resist
+the washing of time and circumstance? Lord Macaulay once ventured the
+prediction that the Constitution would prove unworkable as soon as there
+were no longer large areas of undeveloped land and when the United
+States became a nation of great cities. That period of development has
+arrived. In 1880 only 15 per cent. of the American population lived in
+the cities and the remainder were still on the farms. To-day over 52 per
+cent, are crowded in one hundred great cities. Lord Macaulay added:
+
+    "I believe America's fate is only deferred by physical causes.
+    Institutions purely democratic will sooner or later destroy liberty
+    or civilization, or both.... The American Constitution is all sail
+    and no anchor."
+
+In this last commentary Lord Macaulay was clearly mistaken. As I have
+shown, the Constitution is not "purely democratic." It is amazing that
+so great a mind should have so little understood that more than any
+other Constitution, that of America imposes powerful restraints on
+democracy. The experience of a century and a quarter has shown that
+while the anchor may at times drag, yet it measurably holds the ship of
+state to its ancient moorings. The American Constitution still remains
+in its essential principles and still enjoys not only the confidence but
+the affection of the great and varied people whom it rules. To the
+latter this remarkable achievement must be attributed rather than to any
+inherent strength in parchment or red seals, for in a democracy the
+living soul of any Constitution must be such belief of the people in its
+wisdom and justice. If it should perish to-morrow, it would yet have
+enjoyed a life and growth of which any nation or age might be justly
+proud. Moreover, it could claim with truth, if it finally perished, that
+it had been subjected to conditions for which it was never intended and
+that some of its essential principles had been ignored.
+
+The Constitution is something more than a written formula of
+government--it is a great spirit. It is a high and noble assertion,
+and, indeed, vindication, of the morality of government. It "renders
+unto Caesar [the political state] the things that are Caesar's," but in
+safeguarding the fundamental moral rights of the people, it "renders
+unto God the things that are God's."
+
+In concluding, I cannot refrain from again reminding you that this
+consummate work of statecraft was the work of the English-speaking race,
+and that your people can therefore justly share in the pride which it
+awakens. It is not only one of the great achievements of that _gens
+aeterna_, but also one of the great monuments of human progress. It
+illustrates the possibilities of true democracy in its best estate. When
+the moral anarchy out of which it was born is called to mind, it can be
+truly said that while "sown in weakness, it was raised in power."
+
+To the succeeding ages, it will be a flaming beacon, and everywhere men,
+who are confronted with the acute problems of this complex age, can
+take encouragement from the fact that a small and weak people, when
+confronted with similar problems, had the strength and will to impose
+restraint upon themselves by peacefully proclaiming in the simple words
+of the noble preamble to the Constitution:
+
+    "We, the people of the United States, in order to form a more
+    perfect union, establish justice, ensure domestic tranquillity,
+    provide for the common defence, promote the general welfare, and
+    secure the blessings of liberty to ourselves and our posterity, do
+    ordain and establish this Constitution for the United States of
+    America."
+
+Note the words "ordain and establish." They imply perpetuity. They make
+no provision for the secession of any State, even if it deems itself
+aggrieved by federal action. And yet the right to secede was urged for
+many years, but Lincoln completed the work of Washington, Franklin,
+Madison and Hamilton by establishing that "a government for the people,
+by the people and of the people should not perish from the earth."
+
+
+
+
+_IV. The Revolt Against Authority_
+
+
+"Where there is no vision, the people perish: but he that keepeth the
+law, happy is he."
+
+PROVERBS xxix. 18.
+
+One of the most quoted--and also mis-quoted--proverbs of the wise
+Solomon says, as translated in the authorized version: "Where there is
+no vision, the people perish." What Solomon actually said was: "Where
+there is no vision, the people _cast off restraint_." The translator
+thus confused an effect with a cause. What was the vision to which the
+Wise Man referred? The rest of the proverb, which is rarely quoted,
+explains:
+
+"Where there is no vision, the people cast off restraint: _but he that
+keepeth the law, happy is he_."
+
+The vision, then, is the authority of law, and Solomon's warning is
+that to which the great and noble founder of Pennsylvania, William Penn,
+many centuries later gave utterance, when he said:
+
+"That government is free to the people under it, where the laws rule and
+the people are a party to those laws; and all the rest is tyranny,
+oligarchy and confusion."
+
+It is my present purpose to discuss the moral psychology of the present
+revolt against the spirit of authority. Too little consideration has
+been paid by the legal profession to questions of moral psychology.
+These have been left to metaphysicians and ecclesiastics, and yet--to
+paraphrase the saying of the Master--"the laws were made for man and not
+man for the laws," and if the science of the law ignores the study of
+human nature and attempts to conform man to the laws, rather than the
+laws to man, then its development is a very partial and imperfect one.
+
+Let me first be sure of my premises. Is there in this day and
+generation a spirit of lawlessness greater or different than that that
+has always characterized human society? Such spirit of revolt against
+authority has always existed, even when the penalty of death was visited
+upon nearly all offences against life and property. Blackstone tells us
+(Book IV, Chap. I) that in the eighteenth century it was a capital
+offence to cut down a cherry tree in an orchard--a drastic penalty which
+should increase our admiration for George Washington's courage and
+veracity.
+
+We are apt to see the past in a golden haze, which obscures our vision.
+Thus, we think of William Penn's "holy experiment" on the banks of the
+Delaware as the realization of Sir Thomas More's dream of Utopia; and
+yet Pennsylvania was somewhat intemperately called in 1698 "the greatest
+refuge for pirates and rogues in America," and Penn himself wrote, about
+that time, that he had heard of no place which was "more overrun with
+wickedness" than his City of Brotherly Love, where things were so
+"openly committed in defiance of law and virtue--facts so foul that I am
+forbid by common modesty to relate them."
+
+Conceding that lawlessness is not a novel phenomenon, is not the present
+time characterized by an exceptional revolt against the authority of
+law? The statistics of our criminal courts show in recent years an
+unprecedented growth in crimes. Thus, in the federal courts, pending
+criminal indictments have increased from 9503 in the year 1912 to over
+70,000 in the year 1921. While this abnormal increase is, in part, due
+to sumptuary legislation--for approximately 30,000 cases now pending
+arise under the prohibition statutes--yet, eliminating these, there yet
+remains an increase in nine years of over 400 per cent, in the
+comparatively narrow sphere of the federal criminal jurisdiction. I have
+been unable to get the data from the State Courts; but the growth of
+crimes can be measured by a few illustrative statistics. Thus, the
+losses from burglaries which have been repaid by casualty companies have
+grown in amount from $886,000 in 1914 to over $10,000,000 in 1920; and,
+in a like period, embezzlements have increased five-fold. It is
+notorious that the thefts from the mails and express companies and other
+carriers have grown to enormous proportions. The hold-up of railroad
+trains is now of frequent occurrence, and is not confined to the
+unsettled sections of the country. Not only in the United States, but
+even in Europe, such crimes of violence are of increasing frequency, and
+a recent dispatch from Berne, under date of August 7, 1921, stated that
+the famous International Expresses of Europe were now run under a
+military guard.
+
+The streets of our cities, once reasonably secure from crimes of
+violence, have now become the field of operations for the foot-pad and
+highwayman. The days of Dick Turpin and Jack Sheppard have returned,
+with this serious difference--that the Turpins and Sheppards of our day
+are not dependent upon the horse, but have the powerful automobile to
+facilitate their crimes and make sure their escape.
+
+Thus in Chicago alone, 5000 automobiles were stolen in a single year.
+Once murder was an infrequent and abnormal crime. To-day in our large
+cities it is of almost daily occurrence. In New York, in 1917, there
+were 236 murders and only 67 convictions; in 1918, 221, and 77
+convictions. In Chicago, in 1919, there were 336, and 44 convictions.
+
+When the crime wave was at its height a year ago, the police authorities
+in more than one American city confessed their impotence to impose
+effective restraints. Life and property had seemingly become almost as
+insecure as during the Middle Ages.[3]
+
+[Footnote 3: The reader will bear in mind that these words were spoken
+in August 1921. Unquestionably, the situation has greatly improved
+during the present year(1922).]
+
+As to the subtler and more insidious crimes against the political
+state, it is enough to say that graft has become a science in city,
+state and nation. Losses by such misapplication of public funds--piled
+Pelion on Ossa--no longer run in the millions but the hundreds of
+millions. Our city governments are, in many instances, foul cancers on
+the body politic; and for us to boast of having solved the problem of
+local self-government is as fatuous as for a strong man to exult in his
+health when his body is covered with running sores. It has been
+estimated that the annual profits from violations of the prohibition
+laws have reached $300,000,000. Men who thus violate these laws for
+sordid gain are not likely to obey other laws, and the respect for law
+among all classes steadily diminishes as our people become familiar
+with, and tolerant to, wholesale criminality. Whether the moral and
+economic results of Prohibition overbalance this rising wave of crime,
+time will tell.
+
+_In limine_, let us note the significant fact that this spirit of
+revolt against authority is not confined to the political state, and
+therefore its causes lie beyond that sphere of human action.
+
+Human life is governed by all manner of man-made laws--laws of art, of
+social intercourse, of literature, music, business--all evolved by
+custom and imposed by the collective will of society. Here we find the
+same revolt against tradition and authority.
+
+In music, its fundamental canons have been thrown aside and discord has
+been substituted for harmony as its ideal. Its culmination--jazz--is a
+musical crime. If the forms of dancing and music are symptomatic of an
+age, what shall be said of the universal craze to indulge in crude and
+clumsy dancing to the vile discords of so-called "jazz" music? The cry
+of the time is:
+
+    "On with the dance, let joy be" unrefined.
+
+In the plastic arts, the laws of form and the criteria of beauty have
+been swept aside by the futurists, cubists, vorticists, tactilists, and
+other aesthetic Bolsheviki.
+
+In poetry, where beauty of rhythm, melody of sound and nobility of
+thought were once regarded as the true tests, we now have in freak forms
+of poetry the exaltation of the grotesque and brutal. Hundreds of poets
+are feebly echoing the "barbaric yawp" of Walt Whitman, without the
+redeeming merit of his occasional sublimity of thought.
+
+In commerce, the revolt is against the purity of standards and the
+integrity of business morals. Who can question that this is
+pre-eminently the age of the sham and the counterfeit? Science is
+prostituted to deceive the public by cloaking the increasing
+deterioration in quality of merchandise. The blatant medium of
+advertising has become so mendacious as to defeat its own purpose.
+
+In the recent deflation in commodity values, there was widespread
+"welching" among business men who had theretofore been classed as
+reputable. Of course, I recognize that a far greater number kept their
+contracts, even when it brought them to the verge of ruin. But when in
+the history of American business was there such a volume of broken faith
+as in the drastic deflation of 1920?
+
+In the greater sphere of social life, we find the same revolt against
+the institutions which have the sanction of the past. Social laws, which
+mark the decent restraints of print, speech and dress, have in recent
+decades been increasingly disregarded. The very foundations of the great
+and primitive institutions of mankind--like the family, the Church, and
+the State--have been shaken. Nature itself is defied. Thus, the
+fundamental difference of sex is disregarded by social and political
+movements which ignore the permanent differentiation of social function
+ordained by Nature.
+
+All these are but illustrations of the general revolt against the
+authority of the past--a revolt that can be measured by the change in
+the fundamental presumption of men with respect to the value of human
+experience. In all former ages, all that was in the past was
+presumptively true, and the burden was upon him who sought to change it.
+To-day, the human mind apparently regards the lessons of the past as
+presumptively false--and the burden is upon him who seeks to invoke
+them.
+
+Lest I be accused of undue pessimism, let me cite as a witness one who,
+of all men, is probably best equipped to express an opinion upon the
+moral state of the world. I refer to the venerable head of that
+religious organization[4] which, with its trained representatives in
+every part of the world, is probably better informed as to its spiritual
+state than any other organization.
+
+[Footnote 4: Reference is to the late Pope Benedict.]
+
+Speaking last Christmas Eve, in an address to the College of Cardinals,
+the venerable Pontiff gave expression to an estimate of present
+conditions which should have attracted far greater attention than it
+apparently did.
+
+The Pope said that five plagues were now afflicting humanity.
+
+The first was the unprecedented challenge to authority.
+
+The second, an equally unprecedented hatred between man and man.
+
+The third was the abnormal aversion to work.
+
+The fourth, the excessive thirst for pleasure as the great aim of life.
+
+The fifth, a gross materialism which denied the reality of the spiritual
+in human life.
+
+The accuracy of this indictment will commend itself to men who like
+myself are not of Pope Benedict's communion.
+
+I trust that I have already shown that the challenge to authority is
+universal and is not confined to that of the political state. Even in
+the narrower confine of the latter, the fires of revolution are either
+violently burning, or, at least, smouldering. Two of the oldest empires
+in the world, which, together, have more than half of its population
+(China and Russia) are in a welter of anarchy; while many lesser nations
+are in a stage of submerged revolt. If the revolt were confined to
+autocratic governments, we might see in it merely a reaction against
+tyranny; but even in the most stable of democracies and among the most
+enlightened peoples, the underground rumblings of revolution may be
+heard.
+
+The Government of Italy has been preserved from overthrow, not alone by
+its constituted authorities, but by a band of resolute men, called the
+"fascisti," who have taken the law into their own hands, as did the
+vigilance committees in western mining camps, to put down worse
+disorders.
+
+Even England, the mother of democracies, and the most stable of all
+Governments in the maintenance of law, has been shaken to its very
+foundations in the last three years, when powerful groups of men
+attempted to seize the State by the throat and compel submission to
+their demands by threatening to starve the community. This would be
+serious enough if it were only the world-old struggle between capital
+and labour and had only involved the conditions of manual toil. But the
+insurrection against the political state in England was more political
+than it was economic. It marked, on the part of millions of men, a
+portentous decay of belief in representative government and its chosen
+organ--the ballot box. Great and powerful groups had suddenly
+discovered--and it may be the most portentous political discovery of the
+twentieth century--that the power involved in their control over the
+necessaries of life, as compared with the power of the voting franchise,
+was as a forty-two centimetre cannon to the bow and arrow. The end
+sought to be attained, namely the nationalization of the basic
+industries, and even the control of the foreign policy of Great Britain,
+vindicated the truth of the British Prime Minister's statement that
+these great strikes involved something more than a mere struggle over
+the conditions of labour, and that they were essentially seditious
+attempts against the life of the State.[5]
+
+[Footnote 5: I am here speaking of the conditions of 1920. I appreciate
+the great improvement, which seems to me to justify the Lincoln-like
+patience of Lloyd George.]
+
+Nor were they altogether unsuccessful; for, when the armies of Lenin and
+Trotsky were at the gates of Warsaw, in the summer of 1920, the attempts
+of the Governments of England and Belgium to afford assistance to the
+embattled Poles were paralysed by the labour groups of both countries,
+who threatened a general strike if those two nations joined with France
+in aiding Poland to resist a possibly greater menace to Western
+civilization than has occurred since Attila and his Huns stood on the
+banks of the Marne.
+
+Of greater significance to the welfare of civilization is the complete
+subversion during the world war of nearly all the international laws
+which had been slowly built up in a thousand years. These principles, as
+codified by the two Hague Conventions, were immediately swept aside in
+the fierce struggle for existence, and civilized man, with his liquid
+fire and poison gas and his deliberate; attacks upon undefended cities
+and their women and children, waged war with the unrelenting ferocity of
+primitive times.
+
+Surely, this fierce war of extermination, which caused the loss of three
+hundred billion dollars in property and thirty millions of human lives,
+did mark for the time being the "twilight of civilization." The hands on
+the dial of time had been put back--temporarily, let us hope and pray--a
+thousand years.
+
+Nor will many question the accuracy of the second count in Pope
+Benedict's indictment. The war to end war only ended in unprecedented
+hatred between nation and nation, class and class, and man and man.
+Victors and vanquished are involved in a common ruin. And if in this
+deluge of blood, which has submerged the world, there is a Mount Ararat,
+upon which the ark of a truer and better peace can find refuge, it has
+not yet appeared above the troubled surface of the waters.
+
+Still less can one question the closely related third and fourth counts
+in Pope Benedict's indictment, namely the unprecedented aversion to
+work, when work is most needed to reconstruct the foundations of
+prosperity, or the excessive thirst for pleasure which preceded,
+accompanied, and now has followed the most terrible tragedy in the
+annals of mankind. The true spirit of work seems to have vanished from
+millions of men; that spirit of which Shakespeare made his Orlando
+speak when he said of his true servant, Adam:
+
+  "O good old man! how well in thee appears
+  The constant service of the antique world.
+  When service sweat for duty, not for meed!"
+
+The _moral_ of our industrial civilization has been shattered. Work for
+work's sake, as the most glorious privilege of human faculties, has
+gone, both as an ideal and as a potent spirit. The conception of work as
+a degrading servitude, to be done with reluctance and grudging
+inefficiency, seems to be the ideal of millions of men of all classes
+and in all countries.
+
+The spirit of work is of more than sentimental importance. It may be
+said of it, as Hamlet says of death: "The readiness is all." All of us
+are conscious of the fact that, given a love of work, and the capacity
+for it seems almost illimitable--as witness Napoleon, with his
+thousand-man power, or Shakespeare, who in twenty years could write
+more than twenty masterpieces.
+
+On the other hand, given an aversion to work, and the less a man does
+the less he wants to do, or is seemingly capable of doing.
+
+The great evil of the world to-day is this aversion to work. As the
+mechanical era diminished the element of physical exertion in work, we
+would have supposed that man would have sought expression for his
+physical faculties in other ways. On the contrary, the whole history of
+the mechanical era is a persistent struggle for more pay and less work,
+and to-day it has culminated in world-wide ruin; for there is not a
+nation in civilization which is not now in the throes of economic
+distress, and many of them are on the verge of ruin. In my judgment, the
+economic catastrophe of 1921 is far greater than the politico-military
+catastrophe of 1914.
+
+The results of these two tendencies, measured in the statistics of
+productive industry, are literally appalling.
+
+Thus, in 1920, Italy, according to statistics of her Minister of
+Labour, lost 55,000,000 days of work because of strikes alone. From July
+to September, many great factories were in the hands of revolutionary
+communists. A full third of these strikes had for their end political
+and not economic purposes.
+
+In Germany, the progressive revolt of labour against work is thus
+measured by competent authority: There were lost in strikes in 1917,
+900,000 working days; in 1918, 4,900,000, and, in 1919, 46,600,000.
+
+Even in our own favoured land, the same phenomena are observable. In the
+State of New York alone for 1920, there was a loss due to strikes of
+over 10,000,000 working days.
+
+In all countries the losses by such cessations from labour are little as
+compared with those due to the spirit which in England is called
+"ca'-canny" or the shirking of performance of work, and of sabotage,
+which means the deliberate destruction of machinery in operation.
+Everywhere the phenomenon has been observed that, with the highest wages
+known in the history of modern times, there has been an unmistakable
+lessening of efficiency, and that with an increase in the number of
+workers, there has been a decrease in output. Thus, the transportation
+companies in the United States have seriously made a claim against the
+United States Government for damages to their roads, amounting to
+$750,000,000, claimed to be due to the inefficiency of labour during the
+period of governmental operation.
+
+Accompanying this indisposition to work efficiently has been a mad
+desire for pleasure, such as, if it existed in like measure in preceding
+ages, has not been seen within the memory of living man. Man has danced
+upon the verge of a social abyss, and, as previously suggested, the
+dancing has, both in form and in accompanying music, lost its former
+grace and reverted to the primitive forms of crude vulgarity.
+
+which gives the spectators the maximum of emotional expression with the
+minimum of mental effort, had not been eclipsed by the splendour of a
+Dempsey or a Carpentier.
+
+Of the last count in Pope Benedict's indictment, I shall say but little.
+It is more appropriate for the members of that great and noble
+profession which is more intimately concerned with the spiritual advance
+of mankind. It is enough to say that, while the Church as an institution
+continues to exist, the belief in the supernatural and even in the
+spiritual has been supplanted in the souls of millions of men by a gross
+and debasing materialism.
+
+If my reader agrees with me in my premises then we are not likely to
+disagree in the conclusion that the causes of these grave symptoms are
+not ephemeral or superficial; but must have their origin in some
+deep-seated and world-wide change in human society. If there is to be a
+remedy, we must first diagnose this malady of the human soul.
+
+For example, let us not "lay the flattering unction to our souls" that
+this spirit is solely the reaction of the great war.
+
+The present weariness and lassitude of human spirit and the
+disappointment and disillusion as to the aftermath of the harvest of
+blood, may have aggravated, but they could not cause the symptoms of
+which I speak; for the very obvious reason that all these symptoms were
+in existence and apparent to a few discerning men for decades before the
+war. Indeed, it is possible that the world war, far from causing the
+_malaise_ of the age, was, in itself, but one of its many symptoms.
+
+Undoubtedly, there are many contributing causes which have swollen the
+turbid tide of this world-wide revolution against the spirit of
+authority.
+
+Thus, the multiplicity of laws does not tend to develop a law-abiding
+spirit. This fact has often been noted. Thus Napoleon, on the eve of the
+18th Brumaire, complained that France, with a thousand folios of law,
+was a lawless nation. Unquestionably, the political state suffers in
+authority by the abuse of legislation, and especially by the appeal to
+law to curb evils that are best left to individual conscience.
+
+In this age of democracy, the average individual is too apt to recognize
+two constitutions--one, the constitution of the State, and the second,
+an unwritten constitution, to him of higher authority, under which he
+believes that no law is obligatory which he regards as in excess of the
+true powers of government. Of this latter spirit, the widespread
+violation of the prohibition law is a familiar illustration.
+
+A race of individualists obey reluctantly, when they obey at all, any
+laws which they regard as unreasonable or vexatious. Indeed, they are
+increasingly opposed to any law, which affects their selfish interests.
+Thus many good women are involuntary smugglers. They deny the authority
+of the state to impose a tax upon a Paquin gown. The law's delays and
+laxity in administration breed a spirit of contempt, and too often
+invite men to take the law into their own hands. These causes are so
+familiar that their statement is a commonplace.
+
+Proceeding to deeper and less recognized causes, some would attribute
+this spirit of lawlessness to the rampant individualism, which began in
+the eighteenth century, and which has steadily and naturally grown with
+the advance of democratic institutions. Undoubtedly, the excessive
+emphasis upon the rights of man, which marked the political upheaval of
+the close of the eighteenth and the beginning of the nineteenth century,
+has contributed to this malady of the age. Men talked, and still talk,
+loudly of their rights, but too rarely of their duties. And yet if we
+were to attribute the malady merely to excessive individualism, we would
+again err in mistaking a symptom for a cause.
+
+To diagnose truly this malady we must look to some cause that is
+coterminous in time with the disease itself and which has been operative
+throughout civilization. We must seek some widespread change in social
+conditions, for man's essential nature has changed but little, and the
+change must, therefore, be of environment.
+
+I know of but one such change that is sufficiently widespread and
+deep-seated to account adequately for this malady of our time.
+
+Beginning with the close of the eighteenth century, and continuing
+throughout the nineteenth, a prodigious transformation has taken place
+in the environment of man, which has done more to revolutionize the
+conditions of human life than all the changes that had taken place in
+the 500,000 preceding years which science has attributed to man's life
+on the planet. Up to the period of Watt's discovery of steam vapour as a
+motive power, these conditions, so far as the principal facilities of
+life, were substantially those of the civilization which developed
+eighty centuries ago on the banks of the Nile and later on the
+Euphrates. Man had indeed increased his conquest over Nature in later
+centuries by a few mechanical inventions, such as gunpowder, telescope,
+magnetic needle, printing-press, spinning jenny, and hand-loom, but the
+characteristic of all those inventions, with the exception of gunpowder,
+was that they still remained a subordinate auxiliary to the physical
+strength and mental skill of man. In other words, man still dominated
+the machine, and there was still full play for his physical and mental
+faculties. Moreover, all the inventions of preceding ages, from the
+first fashioning of the flint to the spinning-wheel and the hand-lever
+press, were all conquests of the tangible and visible forces of Nature.
+
+With Watt's utilization of steam vapour as a motive power, man suddenly
+passed into a new and portentous chapter of his varied history.
+Thenceforth, he was to multiply his powers a thousandfold by the
+utilization of the invisible powers of Nature--such as vapour and
+electricity. This prodigious change in his powers, and therefore his
+environment, has proceeded with ever-accelerating speed.
+
+Man has suddenly become the superman. Like the giants of the ancient
+fable, he has stormed the very ramparts of Divine power, or, like
+Prometheus, he has stolen fire of omnipotent forces from Heaven itself
+for his use. His voice can now reach from the Atlantic to the Pacific,
+and, taking wing in his aeroplane, he can fly in one swift flight from
+Nova Scotia to England, or he can leave Lausanne and, resting upon the
+icy summit of Mont Blanc--thus, like "the herald, Mercury, new-lighted
+on a heaven-kissing hill"--he can again plunge into the void, and thus
+outfly the eagles themselves.
+
+In thus acquiring from the forces of Nature almost illimitable power, he
+has minimized the necessity for his own physical exertion or even
+mental skill. The machine now not only acts for him, but too often
+_thinks_ for him.
+
+Is it surprising that so portentous a change should have fevered his
+brain and disturbed his mental equilibrium? A new ideal, which he
+proudly called "progress," obsessed him, the ideal of quantity and not
+quality. His practical religion became that of acceleration and
+facilitation--to do things more quickly and easily--and thus to minimize
+exertion became his great objective. Less and less he relied upon the
+initiative of his own brain and muscle, and more and more he put his
+faith in the power of machinery to relieve him of labour. The evil of
+our age is that its values are all false. It overrates speed, it
+underrates sureness; it overrates the new, it underrates the old; it
+overrates automatic efficiency, it underrates individual craftsmanship;
+it overrates rights, it underrates duties; it overrates political
+institutions, it underrates individual responsibility. We glory in the
+fact that we can talk a thousand miles, but we ignore the greater
+question, whether when we thus out-do Stentor, we have anything worth
+saying. We have now made the serene spaces of the upper Heavens our
+media to transmit market reports and sporting news, second-rate music
+and worse oratory and in the meantime the great masters of thought,
+Homer and Shakespeare, Bach and Beethoven remain unbidden on our library
+shelves. What a sordid Vanity Fair is our modern Civilization!
+
+This incalculable multiplication of power has intoxicated man. The lust
+has obsessed him, without regard to whether it be constructive or
+destructive. Quantity, not quality, becomes the great objective. Man
+consumes the treasures of the earth faster than he produces them,
+deforesting its surface and disembowelling its hidden wealth. As he
+feverishly multiplied the things he desired, even more feverishly he
+multiplied his wants.
+
+To gain these, man sought the congested centres of human life. While
+the world, as a whole, is not over-populated, the leading countries of
+civilization were subjected to this tremendous pressure. Europe, which,
+at the beginning of the nineteenth century, barely numbered 100,000,000
+people, suddenly grew nearly five-fold. Millions left the farms to
+gather into the cities to exploit their new and seemingly easy conquest
+over Nature.
+
+In the United States, as recently as 1880, only 15 per cent. of the
+people were crowded in the cities, 85 per cent. remained upon the farms
+and still followed that occupation, which, of all occupations, still
+preserves, in its integrity, the dominance of human labour over the
+machine. To-day, 52 per cent. of the population is in the cities, and
+with many of them existence is both feverish and artificial. While they
+have employment, many of them do not themselves work, but spend their
+lives in watching machines work.
+
+The result has been a minute subdivision of labour that has denied to
+many workers the true significance and physical benefit of labour.
+
+The direct results of this excessive tendency to specialization, whereby
+not only the work but the worker becomes divided into mere fragments,
+are threefold. Hobson, in his work on John Ruskin, thus classifies them.
+In the first place, _narrowness_, due to the confinement to a single
+action in which the elements of human skill or strength are largely
+eliminated; secondly, _monotony_, in the assimilation of man to a
+machine, whereby seemingly the machine dominates man and not man the
+machine, and, thirdly, _irrationality_, in that work became dissociated
+in the mind of the worker with any complete or satisfying achievement.
+The worker does not see the fruit of his travail, and cannot therefore
+be truly satisfied. To spend one's life in opening a valve to make a
+part of a pin is, as Ruskin pointed out, demoralizing in its
+tendencies. The clerk who only operates an adding machine has little
+opportunity for self-expression.
+
+Thus, millions of men have lost both the opportunity for real physical
+exertion, the incentive to work in the joyous competition of skill, and
+finally the reward of work in the sense of achievement.
+
+More serious than this, however, has been the destructive effort of
+quantity, the great object of the mechanical age, at the expense of
+quality.
+
+Take, for example, the printing-press: No one can question the immense
+advantages which have flowed from the increased facility for
+transmitting ideas. But may it not be true that the thousandfold
+increase in such transmission by the rotary press has also tended to
+muddy the current thought of the time? True it is that the
+printing-press has piled up great treasures of human knowledge which
+make this age the richest in accessible information. I am not speaking
+of knowledge, but rather of the current thought of the living
+generation.
+
+I gravely question whether it has the same clarity as the brain of the
+generation which fashioned the Constitution of the United States. Our
+fathers could not talk over the telephone for three thousand miles, but
+have we surpassed them in thoughts of enduring value? Washington and
+Franklin could not travel sixty miles an hour in a railroad train, or
+twice that speed in an aeroplane, but does it follow that they did not
+travel to as good purpose as we, who scurry to and fro like the ants in
+a disordered ant-heap?
+
+Unquestionably, man of to-day has a thousand ideas suggested to him by
+the newspaper and the library where our ancestors had one; but have we
+the same spirit of calm inquiry and do we co-ordinate the facts we know
+as wisely as our ancestors did?
+
+Athens in the days of Pericles had but thirty thousand people and few
+mechanical inventions; but she produced philosophers, poets and artists,
+whose work after more than twenty centuries still remain the despair of
+the would-be imitators.
+
+Shakespeare had a theatre with the ground as its floor and the sky as
+its ceiling; but New York, which has fifty theatres and annually spends
+$100,000,000 in the box offices of its varied amusement resorts, has
+rarely in two centuries produced a play that has lived.
+
+To-day, man has a cinematographic brain. A thousand images are impressed
+daily upon the screen of his consciousness, but they are as fleeting as
+moving pictures in a cinema theatre. The American Press prints every
+year over 29,000,000,000 issues. No one can question its educational
+possibilities, for the best of all colleges is potentially the
+University of Gutenberg. If it printed only the truth, its value would
+be infinite; but who can say in what proportions of this vast volume of
+printed matter is the true and the false? The framers of the
+Constitution had few books and fewer newspapers. Their thoughts were few
+and simple, but what they lacked in quantity they made up in unsurpassed
+quality.
+
+Before the beginning of the present mechanical age, the current of
+living thought could be likened to a mountain stream, which though
+confined within narrow banks yet had waters of transparent clearness.
+May not the current thought of our time be compared with the mighty
+Mississippi in the period of a spring freshet? Its banks are wide and
+its current is swift, but the turbid stream that flows onward is one of
+muddy swirls and eddies and overflows its banks to their destruction.
+
+The great indictment, however, of the present age of mechanical power is
+that it has largely destroyed the spirit of work. The great enigma which
+it propounds to us, and which, like the riddle of the Sphinx, we will
+solve or be destroyed, is this:
+
+_Has the increase in the potential of human power, through
+thermodynamics, been accompanied by a corresponding increase in the
+potential of human character?_
+
+To this life and death question, a great French philosopher, Le Bon,
+writing in 1910, replied that the one unmistakable symptom of human life
+was "the increasing deterioration in human character," and a great
+physicist has described the symptom as "the progressive enfeeblement of
+the human will."
+
+In a famous book, _Degeneration_, written at the close of the nineteenth
+century, Max Nordau, as a pathologist, explains this tendency by arguing
+that our complex civilization has placed too great a strain upon the
+limited nervous organization of man.
+
+A great financier, the elder J.P. Morgan, once said of an existing
+financial condition that it was suffering from "undigested securities,"
+and, paraphrasing him, is it not possible that man is suffering from
+undigested achievements and that his salvation must lie in adaptation to
+a new environment, which, measured by any standard known to science, is
+a thousandfold greater in this year of grace than it was at the
+beginning of the nineteenth century?
+
+No one would be mad enough to urge such a retrogression as the
+abandonment of labour-saving machinery would involve. Indeed, it would
+be impossible; for, in speaking of its evils, I freely recognize that
+not only would civilization perish without its beneficent aid, but that
+every step forward in the history of man has been coincident with, and
+in large part attributable to, a new mechanical invention.
+
+But suppose the development of labour-saving machinery should reach a
+stage where all human labour was eliminated, what would be the effect on
+man? The answer is contained in an experiment which Sir John Lubbock
+made with a tribe of ants. Originally the most voracious and militant of
+their species, yet when denied the opportunity for exercise and freed
+from the necessity of foraging for their food, in three generations they
+became anaemic and perished.
+
+Take from man the opportunity of work and the sense of pride in
+achievement and you have taken from him the very life of his existence.
+Robert Burns could sing as he drove his ploughshare through the fields
+of Ayr. To-day millions who simply watch an automatic infallible
+machine, which requires neither strength nor skill, do not sing at their
+work but too many curse the fate, which has chained them, like Ixion, to
+a soulless machine.
+
+The evil is even greater.
+
+The specialization of our modern mechanical civilization has caused a
+submergence of the individual into the group or class. Man is fast
+ceasing to be the unit of human society. Self-governing groups are
+becoming the new units. This is true of all classes of men, the employer
+as well as the employee. The true justification for the American
+anti-monopoly statutes, including the Sherman anti-trust law, lies not
+so much in the realm of economics as in that of morals. With the
+submergence of the individual, whether he be capitalist or wage-earner,
+into a group, there has followed the dissipation of moral
+responsibility. A mass morality has been substituted for individual
+morality, and unfortunately, group morality generally intensifies the
+vices more than the virtues of man.
+
+Possibly, the greatest result of the mechanical age is this spirit of
+organization.
+
+Its merits are manifold and do not require statement; but they have
+blinded us to the demerits of excessive organization.
+
+We are now beginning to see--slowly, but surely--that a faculty of
+organization which, as such, submerged the spirit of individualism, is
+not an unmixed good.
+
+Indeed, the moral lesson of the tragedy of Germany is the demoralizing
+influence of organization carried to the _n_th power. No nation was ever
+more highly organized than this modern State. Physically, intellectually
+and spiritually it had become a highly developed machine. Its dominating
+mechanical spirit so submerged the individual that, in 1914, the paradox
+was observed of an enlightened nation that was seemingly destitute of a
+conscience.
+
+What was true of Germany, however, was true--although in lesser
+degree--of all civilized nations. In all of them, the individual had
+been submerged in group formations, and the effect upon the character of
+man has been destructive of his nobler self.
+
+This may explain the paradox of so-called "progress." It may be likened
+to a great wheel, which, from the increasing domination of mechanical
+forces, developed an ever-accelerating speed, until, by centrifugal
+action, it went off its bearings in 1914 and caused an unprecedented
+catastrophe. As man slowly pulls himself out of that gigantic wreck and
+recovers consciousness, he begins to realize that speed is not
+necessarily progress.
+
+Of all this, the nineteenth century, in its exultant pride in its
+conquest of the invisible forces, was almost blind. It not only accepted
+progress as an unmistakable fact--mistaking, however, acceleration and
+facilitation for progress--but in its mad folly believed in an immutable
+law of progress which, working with the blind forces of machinery, would
+propel man forward.
+
+A few men, however, standing on the mountain ranges of human
+observation, saw the future more clearly than did the mass. Emerson,
+Carlyle, Ruskin, Samuel Butler, and Max Nordau, in the nineteenth
+century, and, in our time, Ferrero, all pointed out the inevitable
+dangers of the excessive mechanization of human society. The prophecies
+were unhappily as little heeded as those of Cassandra.
+
+One can see the tragedy of the time, as a few saw it, in comparing the
+first _Locksley Hall_ of Alfred Tennyson, written in 1827, with its
+abiding faith in the "increasing purpose of the ages" and its roseate
+prophecies of the golden age, when the "war-drum would throb no longer
+and the battle flags be furled in the Parliament of Man and the
+Federation of the World," and the later _Locksley Hall_, written sixty
+years later, when the great spiritual poet of our time gave utterance to
+the dark pessimism which flooded his soul:
+
+  "Gone the cry of 'Forward, Forward,' lost within a growing gloom;
+  Lost, or only heard in silence from the silence of a tomb.
+
+  Half the marvels of my morning, triumphs over time and space,
+  Staled by frequence, shrunk by usage, into commonest commonplace!
+
+  Evolution ever climbing after some ideal good,
+  And Reversion ever dragging Evolution in the mud.
+
+  Is it well that while we range with Science, glorying in the Time,
+  City children soak and blacken soul and sense in city slime?"
+
+Am I unduly pessimistic? I fear that this is the case with most men who,
+like Dante, have crossed their fiftieth year and find themselves in a
+"dark and sombre wood."
+
+My reader will probably subject me to the additional reproach that I
+suggest no remedy.
+
+There are many palliatives for the evils which I have discussed. To
+rekindle in men the love of work for work's sake and the spirit of
+discipline, which the lost sense of human solidarity once inspired,
+would do much to solve the problem, for work is the greatest moral force
+in the world. But I must frankly add that I have neither the time nor
+the qualifications to discuss the solution of this grave problem.
+
+If we of this generation can only recognize that the evil exists, then
+the situation is not past remedy; for man has never yet found himself in
+a blind alley of negation. He is still "master of his soul and captain
+of his fate," and, to me, the most encouraging sign of the times is the
+persistent evidence of contemporary literature that thoughtful men now
+recognize that much of our boasted progress was as unreal as a rainbow.
+While the temper of the times seems for the moment pessimistic, it
+merely marks the recognition of man of an abyss whose existence he
+barely suspected but over which his indomitable courage will yet carry
+him.
+
+I have faith in the inextinguishable spark of the Divine, which is in
+the human soul and which our complex mechanical civilization has not
+extinguished. Of this, the world war was in itself a proof. All the
+horrible resources of mechanics and chemistry were utilized to coerce
+the human soul, and all proved ineffectual. Never did men rise to
+greater heights of self-sacrifice or show a greater fidelity "even unto
+death." Millions went to their graves, as to their beds, for an ideal;
+and when that is possible, this Pandora's box of modern civilization,
+which contained all imaginable evils, as well as benefits, also leaves
+hope behind.
+
+I am reminded of a remark that the great Roumanian statesman, Taku
+Jonescu, made during the Peace Conference at Paris. When asked his views
+as to the future of civilization, he replied: "Judged by the light of
+reason there is but little hope, but I have faith in man's
+inextinguishable impulse to live."
+
+Happily, that cannot be affected by any change in man's environment! For
+even when the cave-man retreated from the advance of the polar cap,
+which once covered Europe with Arctic desolation, he not only defied the
+elements but showed even then the love of the sublime by beautifying the
+walls of his icy prison with those mural decorations which were the
+beginning of art.
+
+Assuredly, the man of to-day, with the rich heritage of countless ages,
+can do no less. He has but to diagnose the evil and he will then, in
+some way, meet it.
+
+But what can man-made law do in this warfare against the blind forces of
+Nature?
+
+It is easy to exaggerate the value of all political institutions; for
+they are generally on the surface of human life and do not reach down to
+the deep under-currents of human nature. But the law can do something to
+protect the soul of man from destruction by the soulless machine.
+
+It can defend the spirit of individualism. It must champion the human
+soul in its God-given right to exercise freely the faculties of mind and
+body. We must defend the right to work against those who would either
+destroy or degrade it. We must defend the right of every man, not only
+to join with others in protecting his interests, whether he is a brain
+worker or a hand worker--for without the right of combination the
+individual would often be the victim of giant forces--but we must
+vindicate the equal right of an individual, if he so wills, to depend
+upon his own strength.
+
+The tendency of group morality to standardize man--and thus reduce all
+men to the dead level of an average mediocrity--is one that the law
+should combat. Its protection should be given to those of superior skill
+and diligence, who ask the due rewards of such superiority. Any other
+course, to use the fine phrase of Thomas Jefferson in his first
+inaugural, is to "take from the mouth of labour the bread it has
+earned."
+
+Of this spirit one of the noblest expressions is the Constitution of the
+United States. That Magna Charta has not wholly escaped the destructive
+tendencies of a mechanical age. It was framed at the very end of the
+pastoral-agricultural age and at a time when the spirit of
+individualism was in full flower. The hardy pioneers who, with their
+axes, made straight the pathway of an advancing civilization, were
+sturdy men who need not be undervalued to us of the mechanical age. The
+"prairie schooner," which met the elemental forces of Nature with the
+proud challenge: "Pike's Peak or bust," produced as fine a type of
+manhood as the age which travels either in Mr. Ford's "fliver" or the
+more luxurious Rolls-Royce.
+
+The Constitution was framed in the period that marked the passing of the
+primitive age and the dawn of the day of the machine. Watt had recently
+discovered the potency of steam vapour as a motive power; but its only
+use at first was for pumping water out of the mines.
+
+When the framers of the Constitution met in high convention in
+Philadelphia in the summer of 1787, a Connecticut Yankee, John Fitch,
+was then also working in Philadelphia upon his steamboat; but twenty
+years were to pass before the prow of the _Clermont_ was to part the
+waters of the Hudson, and nearly a half century before transportation
+was to be revolutionized by the utilization of Watt's invention in the
+locomotive. Of the wonders of the steamship, the railroad, the
+telegraphic cable, the wireless, the gasoline engine, and a thousand
+other mechanical miracles, the framers of the American Constitution did
+not even dream.
+
+The greatest and noblest purpose of the Constitution was not alone to
+hold in nicest equipose the relative powers of the nation and the
+States, but also to maintain in the scales of justice a true equilibrium
+between the rights of government and the rights of an individual. It did
+not believe that the State was omnipotent or infallible, and yet it
+proclaimed its authority within wise and just limits. It defended the
+integrity of the human soul.
+
+In other governments, these fundamental decencies of liberty rest upon
+the conscience of the legislature. Under the American Constitution,
+they are part of the fundamental law, and, as such, enforceable by
+judges sworn to defend the integrity of the individual as fully as the
+integrity of the State.
+
+When did a nobler "vision" inspire men in the political annals of
+mankind? Without that vision to restrain each succeeding generation of
+Americans from the tempting excesses of political power, the American
+Commonwealth, with its great heterogeneous democracy, would probably
+perish.
+
+That vision still remains as an ideal with the American people and still
+leads them to ever-higher achievements, for in all the mad changes of a
+frenzied hour, they have not yet lost faith in or love for the
+Constitution of the Fathers! That vision will remain with them as long,
+and no longer, as there is in their hearts a conscious and willing
+acquiescence in its wisdom and justice. Obviously, it can have no
+inherent vigour to perpetuate itself. If it ceases to be of the spirit
+of the people, then the yellow parchment whereon it is inscribed can
+avail nothing. When that parchment was last taken from the safe in the
+State Department, the ink in which it had been engrossed nearly 134
+years ago was found to have faded. All who believe in constitutional
+government must hope that this is not a portentous symbol. The American
+people must write the compact, not with ink upon parchment, but with
+"letters of living light"--to use Webster's phrase--upon their hearts.
+
+Again the solemn warning of the wise man of old recurs to us:
+
+
+"Where there is no vision, the people perish; but he that keepeth the
+law, happy is he."
+
+
+
+
+
+End of the Project Gutenberg EBook of The Constitution of the United States
+by James M. Beck
+
+*** END OF THE PROJECT GUTENBERG EBOOK 10065 ***
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+Project Gutenberg (https://www.gutenberg.org) public repository for
+eBook #10065 (https://www.gutenberg.org/ebooks/10065)
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+Project Gutenberg's The Constitution of the United States, by James M. Beck
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: The Constitution of the United States
+       A Brief Study of the Genesis, Formulation and Political
+       Philosophy of the Constitution
+
+Author: James M. Beck
+
+Release Date: November 12, 2003 [EBook #10065]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+*** START OF THIS PROJECT GUTENBERG EBOOK THE CONSTITUTION ***
+
+
+
+
+Produced by Afra Ullah, Dave Morgan and PG Distributed Proofreaders
+
+
+
+
+[Illustration: _Photo Henry Dixon & Son_ _From the Portrait painted by
+Harrington Mann for Gray's Inn_]
+
+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.
+
+One of England's greatest Prime Ministers, William Pitt, shortly after
+the adoption of the Constitution, prophetically said that it would be
+the admiration of the future ages and the pattern for future
+constitution building. Time has verified his prediction, for
+constitution making has been, since the American Constitution was
+adopted, a continuous industry. The American Constitution has been the
+classic model for the federated State. Lieber estimated that three
+hundred and fifty constitutions were made in the first sixty years of
+the nineteenth century, and, in the constituent States of the American
+Union, one hundred and three new Constitutions were promulgated in the
+first century of the United States.
+
+"Have you a copy of the French Constitution?" was asked of a bookseller
+during the second French Empire, and the characteristically witty Gallic
+reply was: "We do not deal in periodical literature."
+
+Constitutions, as governmental panaceas, have come and gone; but it can
+be said of the American Constitution, paraphrasing the noble tribute of
+Dr. Johnson to the immortal fame of Shakespeare, that the stream of
+time, which has washed away the dissoluble fabric of many other paper
+constitutions has left almost untouched its adamantine strength.
+Excepting the first ten amendments, which were virtually a part of the
+original charter, only nine others have been adopted in more than one
+hundred and thirty years.
+
+A constitution, while primarily for the distribution of governmental
+powers, is, in its last analysis, a formal expression of adherence to
+that which in modern times has been called the higher law, and which in
+ancient times was called natural law. The jurisprudence of every nation
+has, with more or less clearness, recognized the existence of certain
+primal and fundamental laws which are superior to the laws, statutes, or
+conventions of living generations. The original use of the term was to
+import the superiority of the Imperial edict to the laws of the Comitia.
+All nations have recognized this higher law to a greater or less extent.
+If we turn to the writings of the most intellectual race in ancient
+time and possibly in recorded history--the Greeks--we shall see the
+higher law vindicated with incomparable power in the moral philosophy of
+its three greatest dramatists, Aeschylus, Sophocles, and Euripides. How
+was it better expressed than by Antigone when she was asked whether she
+had transgressed the laws of the state and replied:
+
+    "Yes, for that law was not from Zeus, nor did Justice, dweller with
+    the gods below, establish it among men; nor deemed I that thy
+    decree--mere mortal that thou art--could override those unwritten
+    and unfailing mandates, which are not of to-day or yesterday, but
+    ever live and no one knows their birthtide."
+
+Five centuries later the greatest of the Roman lawyers and orators,
+Cicero, spoke in the same terms of a higher law, "which was never
+written and which we are never taught, which we never team by reading,
+but which was drawn by nature herself."
+
+The Roman jurists gave it express recognition. They always recognized
+the distinction between _jus civile_, or the law of the State, and the
+_jus naturale_, or the law of Nature. They nobly conceived that human
+society was a single unit and that it was governed by a law that was
+both antecedent and paramount to the law of Rome. Thus, the idea of a
+higher law transcending the power of a living generation, and therefore
+eternal as justice itself--became lodged in our system of jurisprudence.
+Nor was the Common Law wanting in a recognition of a higher law that
+would curb the power of King or Parliament, for its earlier masters,
+including four Chief Justices (Coke, Hobart, Holt, and Popham),
+supported the doctrine, as laid down by Coke, that the judiciary had the
+power to nullify a law if it were "against common right and
+reason."--(_Bonham's Case_, 8 Coke Reports, 114.)
+
+This view as to the limitation of government and the denial of its
+omnipotence was powerfully accentuated in America by the very conditions
+of its colonization. The good yeomen of England who journeyed to America
+went in the spirit of the noble and intrepid Kent, when, turning his
+back upon King Lear's temporary injustice, he said that he would "shape
+his old course in a country new." Was it strange that the early
+colonists, as they braved the hardships and perils of a dangerous
+voyage, only to be confronted in the wilderness by disease, famine and
+massacre, should fall back for their own government upon these primal
+verities of human society, and claim not only their inherited rights as
+Englishmen, but also the peculiar privileges of pioneers in an
+unconquered wilderness?
+
+This spirit of constitutionalism in America, which culminated in the
+Constitution of the United States, had its institutional origin in the
+spacious days of Queen Elizabeth. That wonderful age, which gave to the
+world not only Shakespeare, Spenser and Jonson, but also Drake,
+Frobisher and Raleigh, was the Anglo-Saxon reaction to the Renaissance.
+The spirit of man had a new birth and was breaking away from the too
+rigid bonds of ancient custom and authority.
+
+Among the notable, but little known, leaders of that time was Sir Edwin
+Sandys, the leading spirit of the London (or Virginia) company. He was a
+Liberal when to be such was an "extra hazardous risk." He was the son of
+a Liberal, for his father, a great prelate, had been sent to the Tower
+for preaching in defence of Lady Jane Grey. The son, Sir Edwin, was the
+foe of monopolies, and in the same Parliament that impeached the great
+genius of this Inn, Francis Bacon, Sandys advocated the then novel
+proposition that accused prisoners should have the right to be
+represented by counsel, to which the strange objection was made that it
+would subvert the administration of justice. As early as 1613, he had
+boldly declared in Parliament that even the King's authority rested upon
+the clear understanding that there were reciprocal conditions which
+neither ruler nor subject could violate with impunity. He might not too
+fancifully be called the "Father of American Constitutionalism," for he
+caused a constitution--possibly the first time that that word was ever
+applied to a comprehensive scheme of government--to be drafted for the
+little colony of Virginia in 1609 and amplified in 1612. Speaking in
+this venerable Hall, whose very walls eloquently remind us of the mighty
+genius of Francis Bacon, it is interesting to recall that these two
+charters of government, which were the beginning of Constitutionalism in
+America and therefore the germ of the Constitution of the United States,
+were put in legal form for royal approval by Lord Bacon himself. Thus
+the immortal Treasurer of this Inn is directly linked with the
+development of Constitutional freedom in America.
+
+Bacon became a member of the council for the Virginia Company in 1609.
+His deep interest in it is attested in the dedication to him by William
+Strachey in 1618 of the latter's _Historie of Travaile into Virginia
+Brittania_.
+
+In his speech in the House of Commons on January 30, 1621, Bacon saw a
+vision of the future and predicted the growth of America, when he said:
+
+    "This kingdom now first in His Majesty's Times hath gotten a lot or
+    portion in the New World by the plantation of Virginia and the
+    Summer Islands. And certainly it is with the kingdoms on earth as it
+    is in the kingdom of heaven, sometimes a grain of mustard seed
+    proves a great tree."
+
+Truly the mustard seed of Virginia did become a great tree in the
+American Commonwealth.
+
+One of Bacon's nephews, also of the Inns of Court, Nathaniel Bacon,
+became the first Liberal leader in the Colonies, and led the first
+revolt against colonial misrule. He was probably of Gray's Inn, for it
+is difficult to imagine a Bacon studying in any Inn than the one to
+which the great Bacon had given so much loving care.
+
+Due to these charters, on July 30, 1619, the little remnant of colonists
+whom disease and famine had left untouched were summoned to meet in the
+church at Jamestown to form the first parliamentary assembly in America,
+the first-born of the fruitful Mother of Parliaments. It was due to
+Sandys not only that the first permanent English settlement in the
+Western World was planted at Jamestown in 1607, but that a later group
+of "adventurers"--for such they called themselves--destined to be more
+famous, were driven by chance of wind and wave to land on the coast of
+Massachusetts. Thus was established, not only the beginning of England's
+colonial Empire--still one of the most beneficent forces in the
+world--but also the principle of local self-government, which, in the
+Western World, was destined to develop the American Commonwealth. The
+compact, signed in the cabin of the _Mayflower_, while not in strictness
+a constitution, like the Virginia Charter, was yet destined to be a
+landmark of history.
+
+Sandys suffered for his convictions, for the party of reaction convinced
+King James that Virginia was a nest of sedition, and the arbitrary
+ruler, in the reorganization of the London company, gave a pointed
+admonition by saying: "Choose the devil, if you will, but not Sir Edwin
+Sandys." In 1621 he was committed to the Tower and only released after
+the House of Commons had made a vigorous protest against his
+incarceration. His successor as treasurer of the London company was
+Shakespeare's patron, the Earl of Southampton, and it is not a fanciful
+conjecture to assume that, when the news of the disaster which befell
+one of the fleets of the London Company on the Island of Bermuda reached
+England, it inspired Shakespeare to write his incomparable sea idyl,
+_The Tempest_. If so, this lovely drama was Shakespeare's unconscious
+apostrophe to America, for in Ariel--seeking to be free--can be
+symbolized her awakening spirit, while Prospero, with his thaumaturgic
+achievements, suggests a constructive genius, which in a little more
+than a century has made one of the least of the nations to-day one of
+the greatest.
+
+Bacon, Sandys, Southampton and the Liberal leaders of the House of
+Commons had implanted in the ideas of the colonists the spirit of
+constitutionalism, which was destined to influence profoundly the whole
+development of the American colonies, and finally to culminate in the
+Constitution of the United States.
+
+The later struggle in the Long Parliament, the fall of Charles I, and
+more especially the deposition of James II, the accession of William of
+Orange, and the substitution for the Stuart claim of divine right that
+of the supremacy of the people in Parliament, naturally had their
+reaction in the Western World in intensifying the spirit of
+constitutionalism in the growing American Commonwealth.
+
+The colonial history was therefore increasingly marked by a spirit of
+individualism, a natural partiality for local rule, and a tenacious
+adherence to their special privileges, whether granted to Crown
+colonies, like New Hampshire, New York, New Jersey, Virginia, the two
+Carolinas, and Georgia, or proprietary governments, like Maryland,
+Delaware, and Pennsylvania, or charter governments, such as
+Massachusetts, Rhode Island, and Connecticut. In the three colonies last
+named formal corporate charters were granted by the Crown, which in
+themselves were constitutions in embryo, and the colonists thus acquired
+written rights as to the government of their internal affairs, upon the
+maintenance of which they jealously insisted. Thus arose the spirit in
+America, which treated constitutional rights, not so much as special
+privileges granted by plenary Sovereignty, but as contractual
+obligations which could be enforced in the Courts against the Sovereign.
+
+All this developed in the colonists a powerful sense of constitutional
+morality, and its pertinency to my present theme lies in the fact that
+when each of the thirteen colonies became, at the conclusion of the War
+of Independence, a separate and independent nation, they were more
+concerned, in establishing a central government, to limit its authority
+and to maintain local self-government than they were to give to the
+new-born nation the powers which it needed. They carried their
+constitutionalism to extremes, which nearly made a strong and efficient
+central government an impossibility.
+
+Nothing was less desired by them than a unified government. It was
+destined to be wrung from their hard necessities. The Constitution was
+the reflex action of two opposing tendencies, the one the imperative
+need of an efficient central government, and the other the passionate
+attachment to local self-rule. Co-operation between the colonies had
+been a matter of long discussion and earnest debate, and primarily
+resulted from the necessity of defence against a common foe the French
+in Canada, and the Indians of the forest. In 1643 four of the New
+England colonies united in a league to defend themselves. In 1693
+William Penn made the first suggestion for a union of all the colonies.
+In 1734 a council was held at Albany at the instance of the Crown to
+provide the means for the defence against France in Canada, and it was
+then that Franklin submitted the first concrete form for a union of the
+colonies into a permanent alliance. It was in advance of the times, for,
+conservative as it was, it was unfortunately opposed both by the Crown
+and the colonies themselves.
+
+The time was not ripe for any such union, and the reason was apparent.
+The colonies differed very much in the character of their populations,
+in the nature of their economic interests, and in their political
+antecedents. They were not wholly of the English race. Many nations in
+Europe had already contributed to the population. For example, New York
+was partly Dutch, and in Pennsylvania there was a considerable element
+of the Swedes, Germans, and Swiss. Moreover, the colonists were as
+widely separated from each other, measured by the facilities of
+locomotion, as are the most remote nations of the world to-day. Only a
+few men ever found occasion to leave their colony to journey to another,
+and most men never left, from birth to death, the community in which
+they lived. Outside of the few scattered communities in the different
+colonies there was an almost unbroken wilderness, with few wagon roads
+and in places only a bridle path. The only methods of communication were
+the letters and still fewer newspapers, which were carried by post
+riders often through an almost trackless wilderness.
+
+Obviously, a working government could not easily be constituted between
+peoples of different religions, races, and economic interests, who, for
+the most part, never met each other face to face and with whom frequent
+communication was impossible.
+
+The differences between the colonies and the mother-country with respect
+to internal taxation slowly developed into an issue of constitutionalism
+rather than of legislative policy. As in England, the immediate question
+affected the power of the Crown to give to the customs inspectors the
+power to make general searches and seizures, to enforce the navigation
+laws. In 1761 James Otis, of Massachusetts, made a fateful speech before
+the colonial legislature, in which, asserting the illegality of the
+search warrants on the ground that they violated the constitutional
+rights of Englishmen to protection in their own homes, he asserted that
+Acts of Parliament which violated the sanctity of the home were void and
+that, more specifically, they violated the charter granted to
+Massachusetts. Asserting the doctrine which at that time was the
+doctrine of the English common law, as stated by Coke and three other
+Chief Justices, he said:
+
+    "To say the parliament is absolute and arbitrary is a contradiction.
+    The Parliament cannot make two and two five. Omnipotency cannot do
+    it.... Parliaments are in all cases to declare what is for the good
+    of the whole; but it is not the declaration of parliament that makes
+    it so: there must be in every instance a higher authority, viz.,
+    GOD. Should an Act of Parliament be against any of His natural laws,
+    which are immutably true, their declaration would be contrary to
+    eternal truth, equity and justice, and consequently void; and so it
+    would be adjudged by the Parliament itself, when convinced of their
+    mistake."
+
+It is a curious fact that in the reaction from the tyranny of the
+Stuarts your country abandoned this principle of the common law by
+substituting for the omnipotence of the Crown the omnipotence of
+Parliament, while in my country the somewhat vague and unworkable
+principle of the common law, which gave the judiciary the power to
+invalidate an act of the legislature, when against natural reason and
+justice, was developed into the great principle, without which
+institutions in an heterogeneous and widely scattered democracy would be
+unworkable, namely that the powers of government are strictly defined,
+and that neither the executive, the legislative, nor the judicial
+departments of the government can go beyond the precise limits
+established by the fundamental law. Like the common law, the
+Constitution was thus the result of a slow evolution. Mr. Gladstone, in
+his oft-quoted remark, gave an erroneous impression when he said:
+
+    "As the British Constitution is the most subtle organism which has
+    proceeded from progressive history, so the American Constitution is
+    the most wonderful work ever struck off, at a given time by the
+    brain and purpose of man."
+
+This assumes that the Constitution sprang, like Minerva, armed
+_cap-à-pie,_ from the brain of the American people, whereas it was as
+much the result of a slow, laborious, and painful evolution as was the
+British Constitution. Probably Gladstone so understood the development
+of the American Constitution and recognized that its framing was only
+the culmination of an evolution of many years.
+
+When the constitutional struggle between the colonies and the Parliament
+became acute, the necessity of a union for a common defence became
+imperative. As early as July, 1773, Franklin recommended the "convening
+of a General Congress" so that the colonies would act together. His
+suggestion was introduced in the Virginia House of Burgesses in May,
+1774, and as a result there met in Philadelphia on September 5 of that
+year the first Continental Congress, styled by themselves: "The
+Delegates appointed by the Good People of these Colonies." Nothing was
+further from their purpose than to form a central government or to
+separate from England. This Congress only met as a conference of
+representatives of the colonies to defend what they conceived to be
+their constitutional rights.
+
+Before the second Continental Congress met in the following year, the
+accidental clash at Lexington and Concord had taken place, and as the
+Congress again re-convened a momentous change had taken place, which
+was, in fact, the beginning of the American Commonwealth. The Congress
+became by force of circumstances a provisional government, and as such
+it might well have claimed plenary powers to meet an immediate exigency.
+So indisposed were they to separate from England or to substitute for
+its rule that of a new government, that the Continental Congress, when
+it then involuntarily took over the government of America, failed to
+exercise any adequate power. It remained simply a conference without
+real power. Each colony had one vote and the rule of unanimity
+prevailed. Even its decisions were largely advisory, for they amounted
+to little more than recommendations to the constituent States as to what
+measures should be taken. Each colony complied with the recommendation
+in its discretion and in its own way. Notwithstanding this fatal lack of
+authority, the Continental Congress, then actually engaged in civil war,
+created an army, and, through its committees, entered into negotiations
+with foreign nations. To support the former, it issued paper money, with
+the disastrous result that could be readily anticipated. While it had a
+presiding officer, it had no executive, and the new nation, which was
+hardly conscious of its own birth, had no judiciary.
+
+Had this _de facto_ government assumed the plenary powers which
+provisional governments must, under similar circumstances, necessarily
+assume, it would have been better for the cause of the colonists. For
+want of an efficient central government, the civil administration of the
+infant nation was marked by a weakness and incapacity that defeated
+Washington's plans and nearly broke his spirit. Washington's little army
+was the victim of the gross incapacity of an impotent government. The
+soldiers came and went, not as the general commanded, but as the various
+colonies permitted. The tragedy of Valley Forge, when the little army
+nearly starved to death, and literally the soldiers could be tracked
+over the snows by their bleeding, unshod feet, was not due to lack of
+clothing and provisions, but to the gross incapacity of a headless
+government that if it had had the wisdom to act lacked the authority.
+The situation was one of chaos. The colonies recruited their own
+contingents, paid such taxes as they pleased, which grew increasingly
+less, and the Congress had no coercive power to enforce its policies,
+either with reference to internal or external affairs. This situation
+was so clearly recognized that immediately after the Declaration of
+Independence on July 4, 1776, the draft of a constitution was proposed
+to give the central government more effective power; but, although the
+necessity was manifest and most urgent, the so-called Articles of
+Confederation, which were then drafted in 1776, were never finally
+adopted by the requisite number of States until March, 1781, when the
+war was nearly over. As the result proved, they marked only a very small
+advance over the existing _de facto_ government, for the constituent
+States were still too jealous of each other and too hostile to the
+creation of a central government to form a truly effective government.
+The founders of the Republic could only learn from their errors, but it
+is their great merit that they had the ability to profit in the stern
+school of experience, of which Franklin has said that it is a "dear
+school, but fools will learn in no other."
+
+The founders of the Republic were not fools, and while they did not, as
+Gladstone seems to intimate, have the inspired wisdom to develop a
+wonderful Constitution by sheer intuition unaided by experience, they
+did have the ability to make of their very errors the stepping-stones to
+a higher destiny.
+
+By the Articles of Confederation, which, as stated, became effective in
+1781, the conduct of foreign affairs was vested in the new government,
+which was also given the power to create admiralty courts, regulate
+coinage, maintain an army and navy, borrow money, and emit bills of
+credit, but the great limitation was that in all other respects the
+constituent States retained absolute power, especially with reference to
+commerce and taxation. All that the central government could do was to
+requisition the States to furnish food supplies, and the States were
+then left to impose the taxes and, if necessary, to enforce their
+payment in their own way, with the inevitable result that they vied with
+each other in the struggle to evade them. The Confederation had no
+direct power over the citizens of the several States. Moreover, the
+Congress could not levy any taxes, or indeed pass any measure unless
+nine out of the thirteen States agreed, and the Constitution could not
+be amended except by unanimous vote. While the Congress could select a
+presiding officer to serve for one year, yet he had no real executive
+authority. During the recess of the Congress, a committee of thirteen,
+consisting of one delegate from each State, had _ad interim_ powers, but
+not greater than the Congress, which they represented.
+
+Such a government would have been fatal to any people, and so it nearly
+proved to be to the infant nation. Two circumstances saved them from the
+consequences of such incapacity: one was the invaluable aid of France,
+and the other the personality of George Washington. Of this great
+leader, one of the noblest that ever "lived in the tide of time," it is
+only necessary to quote the fine tribute paid to him by the greatest of
+the Victorian novelists in his _Virginians_:
+
+    "What a constancy, what a magnanimity, what a surprising
+    persistence against fortune!... Washington, the chief of a nation
+    in arms, doing battle with distracted parties; calm in the midst of
+    conspiracy; serene against the open foe before him and the darker
+    enemies at his back; Washington, inspiring order and spirit into
+    troops hungry and in rags; stung by ingratitude, but betraying no
+    anger, and every ready to forgive; in defeat invincible, magnanimous
+    in conquest and never so sublime as on that day when he laid down
+    his victorious sword and sought his noble retirement--here, indeed,
+    is a character to admire and revere; a life without a stain, a fame
+    without a flaw."
+
+A year after the Articles of Confederation had been adopted, the war
+came to an end by a preliminary treaty on November 30, 1782.
+
+Now follows the least known chapter in American history. It was a period
+of travail, of which the Constitution of the United States and the
+present American nation were born. The government slowly succumbed from
+its own weakness to its inevitable death. Only the shreds and patches of
+authority were left. Gradually the union fell apart. Of the Continental
+Congress only fifteen members, representing seven colonies, remained to
+transact the affairs of the new nation. The army, which previously to
+the termination of the war had dissolved by the hundreds, was now unpaid
+and in a stale of revolt. Measure after measure was proposed in Congress
+to raise money to pay the interest on the bonded indebtedness, which was
+in arrears, and to provide funds for the most necessary expenses, but
+these failed, in Congress for the want of the necessary nine votes or,
+if enacted, the States treated the requisitions with indifference. The
+currency of the United States had fallen almost as low as the Austrian
+kronen, and men derisively plastered the walls of their houses with the
+worthless paper of the Continental Congress. Adequate authority no
+longer remained to carry out the terms of the treaties with England and
+France, and they were nullified by the failure of the infant nation to
+comply with its own obligations and the consequent refusal of the other
+contracting parties to comply with theirs. The government made a call
+upon the States to raise $8,000,000 for the most vital needs, but only
+$400,000 was actually received. Then Congress asked the States to vest
+in it the power to levy a tax of five per cent, on imports for a limited
+period, but, after waiting two years for the action of the States, less
+than nine concurred. The States were then asked to pledge their own
+internal revenue for twenty-five years to meet the national
+indebtedness, but this could only be done by unanimous consent, and
+while twelve States concurred, Rhode Island refused and the measure was
+defeated. It was again the infinite folly of the _liberum veto_ which,
+prior to the great partition, condemned Poland to chronic anarchy.
+
+The impotence of the new government, which was still sitting in
+Philadelphia, can be measured by the fact that on June 9, 1783, word
+came that eighty soldiers were on their way to Philadelphia to demand
+relief. They stacked their arms in front of the State House, where the
+Congress was then sitting, and refused to disband, when requested by
+Col. Alexander Hamilton, as the representative of the Congress, to do
+so. When Congress appealed to the government of Pennsylvania for
+protection, it was advised that the Pennsylvania militia was likewise
+insubordinate. The Congress then hastily fled by night and became a
+fugitive.
+
+The impotence of the Confederation can be measured by the fact that in
+the last fourteen months of its existence its receipts were less than
+$400,000, while the interest on the foreign debt alone was over
+$2,400,000, and the interest on the internal debt was five-fold greater.
+
+In the absence of any government and in the period of general
+prostration it was not unnatural that the spirit of Bolshevism grew with
+alarming rapidity. It even permeated the officers of the Army. In March,
+1783, an anonymous communication was sent to Washington's officers to
+meet in secret conference to take some action, possibly to overthrow the
+government. A copy fell into Washington's hands and, while he forbade
+the assemblage of the officers under the anonymous call, he himself
+directed the officers to assemble. He unexpectedly appeared at the
+meeting and, being no speaker, he had reduced his appeal to writing. As
+he adjusted his spectacles to read it, he pathetically said: "I have not
+only grown gray but blind in your service." He then made a touching
+appeal to them not to increase by example the spreading spirit of
+revolt. The very sight of their old commander turned the hearts of the
+revolting element and the officers remained loyal to their noble leader.
+
+Where the spirit of disaffection was thus found in high places it
+naturally prevailed more widely among the masses who had been driven to
+frenzy by their sufferings. This culminated in a revolt in Massachusetts
+under the leadership of an old soldier named Shays, and it spread with
+such rapidity that not only did one-fifth of the people join in
+attempting to overthrow the remnant of established authority in
+Massachusetts, but it rapidly spread to other States. The offices of
+government and the courthouses were seized, the collection of debts was
+forbidden, and private property was forcibly appropriated to meet the
+common needs.
+
+Chaos had come again. It filled Washington's heart with disgust and
+despair. After surrendering his commission to the pitiful remnant of the
+government he had retired to Mount Vernon, and for a time declined to
+act further as the leader of his people. Thus, in October, 1785, he
+wrote James Warren, of Massachusetts:
+
+    "The war, as you have very justly observed, has terminated most
+    advantageously for America, and a fair field is presented to our
+    view; but I confess to you freely, my dear sir, that I do not think
+    we possess wisdom or justice enough to cultivate it properly.
+    Illiberality, jealousy, and local policy mix too much in all our
+    public councils for good government of the union. In a word, the
+    Confederation appears to me to be little more than a shadow without
+    the substance, and Congress a nugatory body, their ordinances being
+    little attended to.... By such policy as this the wheels of
+    government are clogged, and our brightest prospects, and that high
+    expectation which was entertained of us by the wondering world, are
+    turned into astonishment; and, from the high ground on which we
+    stood, we are descending into the vale of confusion and darkness."
+
+Again he wrote to George Mason:
+
+    "I have seen without despondency, even for a moment, the hours which
+    America has styled its gloomy ones, but I have beheld no day since
+    the commencement of hostilities that I thought our liberties in such
+    imminent danger as at present. Indeed, we are verging so fast to
+    destruction that I am feeling that sense to which I have been a
+    stranger until within these three months."
+
+Again in 1786 he writes:
+
+    "I think often of our situation, and view it with concern. From the
+    high ground we stood upon, from the plain path which invited our
+    footsteps, to be so fallen, so lost, is mortifying; but everything
+    of virtue has, in a degree, taken its departure from our land....
+    What, gracious God, is man that there should be such inconsistency,
+    and perfidiousness in his conduct! It was but the other day that we
+    were shedding our blood to obtain the Constitutions under which we
+    now live, and now we are unsheathing our swords to overturn them.
+    The thing is so unaccountable that I hardly know how to realize it
+    or to persuade myself that I am not under an illusion of a dream."
+
+It was, however, the darkest hour before the dawn, and again it was
+Washington who became his country's saviour. In 1785, some commissioners
+from the States of Virginia and Maryland visited Mount Vernon to pay
+their respects to the well-loved commander. After conferring with him
+upon the chaos of the times, they decided to issue a call for a general
+conference of the representatives of the States to be held on September
+11, 1786, at Annapolis, Maryland, to discuss how far the States
+themselves could agree on common regulations of commerce. At the
+appointed time the delegates assembled from Virginia, Pennsylvania,
+Delaware, New York and New Jersey, and finding themselves too few in
+number to achieve the great objective, the convention contented itself
+by issuing another call, drafted by Alexander Hamilton, then under
+thirty years of age, to all the States to send delegates to a convention
+to be held in Philadelphia on the second Monday in May, 1787, "to take
+into consideration the situation of the United States, to devise such
+further provisions as should appear to them necessary to render the
+Constitution of the Federal Government adequate to the exigencies of the
+Union."
+
+The dying Congress tardily approved of this suggestion, but finally, on
+January 21, 1787, grudgingly adopted a resolution that--
+
+    "It is expedient that on the second Monday in May next a convention
+    of delegates, who shall have been appointed by the several States,
+    be held at Philadelphia _for the sole and express purpose of
+    revising the Articles of Confederation_ and reporting to Congress
+    and the several legislatures such alterations and provisions therein
+    as shall, _when agreed to in Congress_ and conformed to by the
+    States, render the Federal Constitution adequate to the exigency of
+    the government and the preservation of the union."
+
+It will be noted by the italicized portions of the resolution that this
+impotent body thus vainly attempted to cling to the shadow of its
+vanished authority by stating that the proposed constitutional
+convention should merely revise the worthless Articles of Confederation
+and that such amendments should not have validity until adopted by
+Congress as well as by the people of the several States. How this
+mandate was disregarded and how the convention was formed, and
+proceeded to create a new government with a new Constitution, and how
+it achieved its mighty work, will be the subject of the next lecture.
+
+Anticipating the masterly ability with which a seemingly impotent and
+dying nation plucked from the nettle of danger the flower of safety, let
+me conclude this first address by quoting the words of de Tocqueville,
+in his remarkable work _Democracy in America_, where he says:
+
+    "The Federal Government, condemned to impotence by its Constitution
+    and no longer sustained by the presence of common danger ... was
+    already on the verge of destruction when it officially proclaimed
+    its inability to conduct the government and appealed to the
+    constituent authority of the nation.... It is a novelty in the
+    history of a society to see a calm and scrutinizing eye turned upon
+    itself, when apprised by the legislature that the wheels of
+    government are stopped; to see it carefully examine the extent of
+    the field and patiently wait for two years until a remedy was
+    discovered, which it voluntarily adopted, without having ever wrung
+    a tear or a drop of blood from mankind."
+
+
+
+
+_II. The Great Convention_
+
+
+Now follows a notable and yet little known scene in the drama of
+history. It reveals a people who, without shedding a drop of blood,
+calmly and deliberately abolished one government, substituted another,
+and erected it upon foundations which have hitherto proved enduring.
+Even the superstructure slowly erected upon these foundations has
+suffered little change in the most changing period of the world's
+history, and until recently its additions, few in number, have varied
+little from the plans of the original architects. The Constitution is
+to-day, not a ruined Parthenon, but rather as one of those Gothic
+masterpieces, against which the storms of passionate strife have beaten
+in vain. The foundations were laid at a time when disorder was rampant
+and anarchy widely prevalent. As I have already shown in my first
+lecture, credit was gone, business paralysed, lawlessness triumphant,
+and not only between class and class, but between State and State, there
+were acute controversies and an alarming disunity of spirit. To weld
+thirteen jealous and discordant States, demoralized by an exhausting
+war, into a unified and efficient nation against their wills, was a
+seemingly impossible task. Frederick the so-called Great had said that a
+federal union of widely scattered communities was impossible. Its final
+accomplishment has blinded the world to the essential difficulty of the
+problem.
+
+The time was May 25, 1787; the place, the State House in Philadelphia, a
+little town of not more than 20,000 people, and, at that time, as
+remote, measured by the facilities of communication, to the centres of
+civilization as is now Vladivostok.
+
+The _dramatis personae_ in this drama, though few in numbers, were,
+however, worthy of the task.
+
+Seventy-two had originally been offered or given credentials, for each
+State was permitted to send as many delegates as it pleased, inasmuch as
+the States were to vote in the convention as units. Of these, the
+greatest actual attendance was fifty-five, and at the end of the
+convention a saving remnant of only thirty-nine remained to finish a
+work which was to immortalize its participants.
+
+While this notable group of men contained a few merchants, financiers,
+farmers, doctors, educators, and soldiers, of the remainder, at least
+thirty-one were lawyers, and of these many had been justices of the
+local courts and executive officers of the commonwealths. Four had
+studied in the Inner Temple, at least five in the Middle Temple, one at
+Oxford under the tuition of Blackstone and two in Scottish Universities.
+Few of them were inexperienced in public affairs, for of the original
+fifty-five members, thirty-nine had been members of the first or second
+Continental Congresses, and eight had already helped to frame the
+constitutions of their respective States. At least twenty-two were
+college graduates, of whom nine were graduates of Princeton, three of
+Yale, two of Harvard, four of William and Mary, and one each from the
+Universities of Oxford, Columbia, Glasgow, and Edinburgh. A few already
+enjoyed world-wide fame, notably Doctor Franklin, possibly the most
+versatile genius of the eighteenth century and universally known and
+honoured as a scientist, philosopher, and diplomat, and George
+Washington, whose fame, even at that day, had filled the world with the
+noble purity of his character.
+
+It was a convention of comparatively young men, the average age being
+little above forty. Franklin was the oldest member, being then
+eighty-one; Dayton, the youngest, being twenty-seven. With the
+exception of Franklin and Washington, most of the potential
+personalities in the convention were under forty. Thus, James Madison,
+who contributed so largely to the plan that he is sometimes called "The
+Father of the Constitution," was thirty-six. Charles Pinckney, who,
+unaided, submitted the first concrete draft of the Constitution, was
+only twenty-nine, and Alexander Hamilton, who was destined to take a
+leading part in securing its ratification by his powerful oratory and
+his very able commentaries in the Federalist papers, was only thirty.
+
+Above all they were a group of gentlemen of substance and honour, who
+could debate for four months during the depressing weather of a hot
+summer without losing their tempers, except momentarily--and this
+despite vital differences--and who showed that genius for toleration and
+reconciliation of conflicting views inspired by a common fidelity to a
+great objective that is the highest mark of statesmanship. They
+represented the spirit of representative government at its best in
+avoiding the cowardice of time-servers and the low cunning of
+demagogues. All apparently were inspired by a fine spirit of
+self-effacement. Selfish ambition was conspicuously absent. They
+differed, at times heatedly, but always as gentlemen of candour and
+honour. The very secrecy of their deliberations, of which I shall
+presently speak, is ample proof how indifferent they were to popular
+applause and the _civium ardor prava jubentium_.
+
+The convention had been slow in assembling. Ample notice had been given
+that it would convene on May 13, 1787, but when that day arrived a mere
+handful of the delegates, less than a quorum, had assembled.
+
+The Virginia delegation, six in number, and forming probably the ablest
+delegation from any State, arriving in time, and failing to find a
+quorum then assembled, employed the period of waiting in submitting to
+the Pennsylvania delegation the outlines of a plan for the new
+Constitution. The plan was largely the work of James Madison, and how
+long it had been in preparation cannot be definitely stated. It is clear
+that four years before a Philadelphia merchant, one Peletiah Webster,
+had published a brochure proposing a scheme of dual sovereignty, under
+which the citizens would owe a double allegiance--one to the constituent
+States within the sphere of their reserved powers, and one to a
+federated government within the sphere of its delegated powers. Leagues
+of States had often existed, but a league which, within a prescribed
+sphere, would have direct authority over the citizens of the constituent
+States, without, however, abolishing the authority of such States as to
+their reserved sphere of power, was a novel theory. How far the Virginia
+project had been influenced by Webster's suggestion is not clear, but it
+is certain that before the convention met Pennsylvania and Virginia,
+two of the most powerful States, were committed to it.
+
+The suggestion was a radical one, for the States, with few exceptions,
+were chiefly insistent upon the preservation of their sovereignty, and
+while they were willing to amend the Articles of Confederation by giving
+fuller authority to the central government, such as it was, the
+suggestion of subordinating the States to a new sovereign power, whose
+authority within circumscribed limits was to be supreme, was opposed to
+all their conventions and traditions. Washington, however, had warmly
+welcomed the creation of a strong central government, and his
+correspondence with the leading men of the colonies for some years
+previously had been burdened with arguments to convince them that a mere
+league of States would not suffice to create a stable nation. To George
+Washington, soldier and statesman, is due above all men the ideal of a
+federated union, for without his influence--that of a noble and
+unselfish leader--the great result would probably never have been
+secured. While still waiting for the convention, to meet, and while
+discussing what was expedient and practicable when they did meet,
+Washington one day said to a group of delegates, who were considering
+the acute nature of the crisis:
+
+    "It is too probable that no plan that we propose will be adopted.
+    Perhaps another dreadful conflict is to be sustained. If, to please
+    the people, we offer what we ourselves disapprove, how can we
+    afterwards defend our work? Let us raise a standard to which the
+    wise and just can repair. The event is in the hand of God."
+
+Noble words, fit to be written in letters of gold over the portal of
+every legislature of the world, and it was in this spirit that the
+convention finally convened on May 25th, 1787.
+
+When the delegates from nine States had assembled, Washington was
+unanimously elected the presiding officer of the convention. It began by
+adopting rules of order, and the most significant of these was the
+provision for secrecy. No copy should be taken of any entry on the
+Journal, or even permission given to inspect it, without leave of the
+convention, and "nothing spoken in the house be printed or otherwise
+published or communicated without leave." The yeas and nays should not
+be recorded. The rule of secrecy was enlarged by an unwritten
+understanding that, even when the convention had adjourned, no
+disclosure should be made of its proceedings during the life of its
+members. When after nearly four months, the convention adjourned, the
+secret had been kept, and no one knew even the concrete result of its
+deliberations until the Constitution itself, and nothing else, was
+offered to the approval of the people. The high-way, upon which the
+State House fronted, was covered with earth, to deaden the noise of
+traffic, and sentries were posted at every means of ingress and egress,
+to prevent any intrusion upon the privacy of the convention. The members
+were not photographed daily for the pictorial Press, nor did any cinema
+register their entrance into the simple colonial hall where they were to
+meet. Notwithstanding this limitation--for no present-day conference or
+assembly can proceed with its labours until its members are photographed
+for the curiosity of the public--these simple-minded gentlemen--less
+intent upon their appearance than their task--were to accomplish a work
+of enduring importance.
+
+The extreme care which was taken to preserve this secrecy inviolate, and
+its purpose, were indicated in an incident handed down by tradition.
+
+One of the members dropped a copy of a proposition then before the
+convention for consideration, and it was found by another of the
+delegates and handed to General Washington. At the conclusion of the
+session, Washington arose and sternly reprimanded the member for his
+carelessness by saying:
+
+    "I must entreat gentlemen to be more careful, lest our transactions
+    get into the newspapers and disturb the public repose by premature
+    speculations. I know not whose paper it is, but there it is
+    [_throwing it down on the table_]. Let him who owns it, take it."
+
+He then bowed, picked up his hat and left the room with such evidences
+of annoyance that, like school-children, no delegate was willing to
+admit the ownership of the paper.
+
+The thought suggests itself: How different the result at Versailles and
+Genoa might have been had there been the same reasonable provisions for
+discussion and action uninfluenced by too premature public comment of
+the day! In these days, when representative government has degenerated
+into government by a fleeting public opinion, the price we pay for such
+government by, for and of the Press, is too often the inability of
+representatives to do what they deem wise and just.
+
+At the close of the convention its records were committed into the
+keeping of Washington, with instructions to "retain the journal and
+other papers, subject to order of Congress, if ever formed under the
+Constitution."
+
+Even the journal consisted of little more than daily memoranda, from
+which the minutes ought to have been, but never were, made; and these
+fragmentary records of the proceedings of a convention which had been in
+continuous session for nearly four months were never published until the
+year 1819, or thirty-two years after the close of the convention. Thus,
+the American people knew nothing of their greatest convention until a
+generation later, and then only a few bones of the mastodon were
+exhibited to their curious gaze.
+
+The members of the convention kept its secrets inviolate for many years.
+With few exceptions, the great secrets of the convention died with them.
+Only one, James Madison, left a comprehensive statement of the more
+formal proceedings. With this notable exception, only a few anecdotes,
+handed down by tradition, escaped oblivion. The first of the number to
+break the pledge of secrecy was Robert Yates, Chief Justice of New York,
+who, in 1821, published his recollections; but, as he had left the
+convention a few months after it began, his notes ceased with the 5th of
+July.
+
+The world would thus have been for ever ignorant of the details of one
+of the most remarkable conventions in the annals of mankind had it not
+been that one of the ablest of their number, James Madison, regularly
+attended the sessions and kept notes from day to day of the debates.
+While he was not a stenographer, he had a gift for condensing a speech
+and fairly representing its substance. He jealously guarded his Journal
+of the Convention until his death. Its very existence was known to few.
+He died in 1836, and four years later the government purchased the
+manuscript from his widow. Then, for the first time, the curtain was
+measurably raised upon the proceedings of a convention which had
+created, as we now know, one of the greatest nations in history.
+Fifty-three years after the close of the convention, and when nearly
+every one of its participants were dead, Madison's Journal was first
+published.
+
+When was a great secret better kept? Grateful as posterity must be for
+this inestimable gift of great human enterprise, yet even Madison's
+careful journal fills one with the deepest regret that this wonderful
+debate, which lasted for nearly four months between men of no ordinary
+ability, could not have been preserved to the world.
+
+Two or three of the speeches which Madison gives in his Journal are
+complete, for when Doctor Franklin spoke he reduced his remarks to
+writing and gave a copy to Madison, but of the other speeches only a
+fragrant remains. Thus, that "admirable Crichton," Alexander Hamilton,
+addressed the convention in a speech that lasted five hours, in which he
+stated his philosophy of government, but of that only a short
+condensation, and possibly not even an accurate fragment, remains.
+
+Without this extraordinary provision for secrecy, which is so opposed to
+modern democratic conventions, and which so little resembles the famous
+point as to "open covenants openly arrived at," the convention could not
+have accomplished its great work, for these wise men realized that a
+statesman cannot act wisely under the observation of a gallery, and
+especially when the gallery compels him by the pressure of public
+opinion to work as it directs. I recognize that public opinion--often
+temporarily uninformed but in the end generally right--does often save
+the democracies of the world from the selfish ends of self-seeking and
+misguided leadership; but, given noble and wise representatives, they
+work best when least influenced by the fleeting passions of the day.
+
+It is evident that if the framers of the Constitution had met, as
+similar conventions have within recent years met at Versailles and
+Genoa, with the world as their gallery and with the representatives of
+the Press as an integral part of the conference, they would have
+accomplished nothing. The probability is that the convention would not
+have lasted a month if their immediate purpose had been to placate
+current opinion. It may be doubted whether such a convention, if called
+to-day, either in your country or mine, could achieve like results, for
+in this day of unlimited publicity, when men divide not as individuals
+but in powerful and organized groups, a constitutional convention would,
+I fear, prove a witches' cauldron of class legislation and demagoguery.
+Is it not possible that modern democracy is in danger of strangulation
+by its present-day methods and ideals? Again the words of Washington
+suggest themselves: "If, to please the people, we offer what we
+ourselves disapprove, how can we afterwards defend our work? Let us
+raise a standard to which the wise and just can repair."
+
+Working with a sad sincerity and with despair in their hearts, this
+little band of men wrought a work of surpassing importance, and if they
+did not receive the immediate plaudits of the living generation, their
+shades can at least solace themselves with the reflection that posterity
+has acclaimed their work as one of the greatest political achievements
+of man.
+
+The rules of order and the nature of the proceedings thus determined,
+the convention opened by an address by Mr. Randolph of Virginia, in
+which he submitted, in the form of fifteen points--nearly the number of
+the fatal fourteen--the outlines for a new government. He himself in his
+opening speech summarized the propositions by candidly confessing "that
+they were not intended for a federal government" (thereby meaning a mere
+league of States) but "a strong consolidated union." Upon this radical
+change the convention was to argue earnestly and at times bitterly for
+many a weary day. The plan provided for a national legislature of which
+the lower branch should be elected by the people and the upper branch by
+the lower branch upon the nomination of the legislatures of the States.
+This legislature should enjoy all the legislative rights given to the
+federation, and there followed the sweeping grant that it "could
+legislate in all cases to which the separate States are incompetent or
+in which the harmony of the United States may be interrupted by the
+exercise of individual legislation," with power "to negative all laws
+passed by the several States contravening in the opinion of the national
+legislature the Articles of the Union."
+
+A national executive was proposed, together with a national judiciary,
+and these two bodies were given authority "to examine every act of the
+national legislature before it shall operate and every act of a
+particular legislature before a negative thereon shall be final." This
+marked an immense advance over the Articles of Confederation, under
+which there was no national executive or judiciary, and under which the
+legislature had no direct power over the citizens of the States, and
+could only impose duties upon the States themselves by the concurrence
+of nine of the thirteen.
+
+Hardly had Mr. Randolph submitted the so-called Virginia plan when
+Charles Pinckney, of South Carolina, a young man of twenty-nine years
+of age, with the courage of youth submitted to the House a draft of the
+future federal government. Curiously enough, it did not differ in
+principle from the Virginia plan, but was more specific and concrete in
+stating the powers which the federal government should exercise, and
+many of its provisions were embodied in the final draft. Indeed,
+Pinckney's plan was the future Constitution of the United States in
+embryo; and when it is read and contrasted with the document which has
+so justly won the acclaim of men throughout the world, it is amazing
+that so young a man should have anticipated and reduced to a concrete
+and effective form many of the most novel features of the Federal
+Government. As the only copy of Pinckney's plan was furnished years
+afterwards to Madison for his journal, it is possible that some of its
+wisdom was of the _post factum_ variety.
+
+Having received the two plans, the convention then went, on May 30,
+into a committee of the whole to consider the fifteen propositions in
+the Virginia plan _seriatim_. They wisely concluded to determine
+abstract ideas first and concrete forms later. Apparently for the time
+being little attention was paid to Pinckney's plan, and this may have
+been due to the hostile attitude of the older members of the convention
+to the presumption of his youth.
+
+Then ensued a very remarkable debate on the immediate propositions and
+the principles of government which underlay them, which lasted for two
+weeks. On June 13 the committee rose. Even the fragments of this debate,
+which may well have been one of the most notable in history, indicate
+the care with which the members had studied governments of ancient and
+modern times. There were many points of difference, but chief of them,
+which nearly resulted in the collapse of the convention, was the
+inevitable difficulty which always arises in the formation of a league
+of States or an association of nations between the great and the little
+States.
+
+The five larger States had a population that was nearly twice as great
+as the remaining eight States. Thus Virginia's population was nearly
+ten-fold as great as Georgia. Moreover, the States differed greatly in
+their material wealth and power. Nevertheless, all of them entered the
+convention as independent sovereign nations, and the smaller nations
+contended that the equality in suffrage and political power which
+prevailed in the convention (in which each State, large or small, voted
+as a unit), should and must be preserved in the future government. To
+this the larger States were quite unwilling to yield, and when the
+committee rose they reported, in substance, the Virginia plan, with the
+proviso that representation in the proposed double-chambered Congress
+should be "according to some equitable ratio of representation."
+
+On June 15 the small States presented their draft, which was afterwards
+known as the New Jersey plan, because it was introduced by Mr. Patterson
+of that State. It only contemplated an amendment to the existing
+Constitution and an amplification of the powers of the impotent
+Confederation. Its chief advance over the existing government was that
+it provided for a federal executive and a federal judiciary, but
+otherwise the government remained a mere league of States, in which the
+central government could generally act only by the vote of nine States,
+and in which their power was exhausted when they requested the States to
+enforce the decrees. Its chief advance over the Articles of
+Confederation, in addition to the creation of an executive, was an
+assertion that the acts of Congress "shall be the supreme law of the
+respective States ... and that the judiciary of the several States shall
+be bound thereby in their decisions," and that "if any State or any
+body of men in any State shall oppose or prevent the carrying into
+execution of such acts or treaties the federal executive shall be
+authorized to call forth the power of the confederated States ... to
+enforce and compel obedience to such acts or an observance of such
+treaties."
+
+While this was some advance toward a truly national government, it yet
+left the national executive dependent upon the constituent States, for
+if they failed to respond to the call above stated the national
+government had no direct power over their citizens.
+
+The New Jersey plan precipitated a crisis, and thereafter, and for many
+days, the argument proceeded, only to increase in bitterness.
+
+On June 18 Alexander Hamilton, who agreed with no one else, addressed
+the convention for the first time. He spoke for five hours and reviewed
+exhaustively the Virginia and New Jersey plans, and possibly the
+Pinckney draft. Even the fragment of the speech, as taken in long-hand
+by Madison, shows that it was a masterly argument. He stated his belief
+"that the British Government was the best in the world and that he
+doubted much whether anything short of it would do in America." He
+praised the British Constitution, quoting Monsieur Necker as saying that
+"it was the only government in the world which unites government
+strength with individual security." He analysed and explained your
+Constitution as it then was and advocated an elective monarchy in form
+though not in name. It is true that he called the executive a "governor"
+and not a king, but the governor, so-called, was to serve for life and
+was given not only "a negative on all laws about to be passed," but even
+the execution of all duly enacted laws was in his discretion. The
+governor, with the consent of the Senate, was to make war, conclude all
+treaties, make all appointments, pardon all offences, with the full
+power through his negative of saying what laws should be passed and
+which enforced. Hamilton's governor would have been not dissimilar to
+Louis XIV, and could have said with him, "_L'état, c'est moi_!" The
+Senate also served for life, and the only concession which Hamilton made
+to democracy was an elective house of representatives. Thinly veiled,
+his plan contemplated an elective king with greater powers than those of
+George III, an imitation House of Lords and a popular House of Commons
+with a limited tenure.
+
+Hamilton's plan was never taken seriously and, so far as the records
+show, was never afterwards considered. His admirers have given great
+praise to his work in the federal convention. His real contribution lay
+in the fact that when the Constitution was finally drafted and offered
+to the people, while he regarded it as a "wretched makeshift," to use
+his own expression, yet he was broad and patriotic enough to surrender
+his own views and advocate the adoption of the Constitution. In so
+doing, he fought a valorous fight, secured the acquiescence of the State
+of New York, and without its ratification the Constitution would never
+have been adopted. Hamilton later thought better of the Constitution,
+and its successful beginning is due in large measure to his genius for
+constructive administration.
+
+As the debate proceeded, the crisis precipitated by the seemingly
+insoluble differences between the great and little States became more
+acute. The smaller States contended that the convention was
+transgressing its powers, and they demanded that the credentials of the
+various members be read. In this there was technical accuracy, for the
+delegates had been appointed to revise the Articles of Confederation and
+not to adopt a new Constitution. A majority of the convention, however,
+insisted upon the convention proceeding with the consideration of a new
+Constitution, and their views prevailed. It speaks well for the honour
+of the delegates that although their differences became so acute as to
+lead at times to bitter expressions, neither side divulged them to the
+outside public. The smaller States could easily have ended the
+convention by an appeal to public opinion, which was not then prepared
+for a "consolidated union," but they were loyal enough to fight out
+their quarrels within the walls of the convention hall.
+
+At times the debate became bitter in the extreme. James Wilson, a
+delegate of Pennsylvania and a Scotchman by birth and education, turning
+to the representatives of the little States, passionately said:
+
+    "Will you abandon a country to which you are bound by so many strong
+    and enduring ties? Should the event happen, it will neither stagger
+    my sentiments nor duty. If the minority of the people refuse to
+    coalesce with the majority on just and proper principles, if a
+    separation must take place, it could never happen on better
+    grounds."
+
+He referred to the demand of the larger States that representation
+should be proportioned to the population. To this Bedford, of Delaware,
+as heatedly replied;
+
+    "We have been told with a dictatorial air that this is the last
+    moment for a fair trial in favour of good government. It will be the
+    last, indeed, if the propositions reported by the committee go forth
+    to the people. The large States dare not dissolve the convention. If
+    they do, the small ones will find some foreign ally of more honour
+    and good faith, who will take them by the hand and do them justice."
+
+Finally, the smaller States gave their ultimatum to the larger States
+that unless representation in both branches of the proposed legislature
+should be on the basis of equality--each State, whether large or small,
+having one vote--they would forthwith leave the convention. An
+eye-witness says that, at that moment, Washington, who was in the chair,
+gave old Doctor Franklin a significant look. Franklin arose and moved an
+adjournment for forty-eight hours, with the understanding that the
+delegates should confer with those with whom they disagreed rather than
+with those with whom they agreed.
+
+A recess was taken, and when the convention re-convened on July 2, a
+vote was taken as to equality of representation in the Senate and
+resulted in a tie vote. It was then decided to appoint a committee of
+eleven, one from each State, to consider the question, and this
+committee reported three days later, on July 5, in favour of
+proportionate representation in the House and equal representation in
+the Senate. This suggestion, which finally saved the situation, was due
+to that wise old utilitarian philosopher, Franklin. Again, a vehement
+and passionate debate followed. Vague references were made to the sword
+as the only method of solving the difference.
+
+On July 9 the committee again reported, maintaining the principle of
+their recommendation, while modifying its details, and the debate then
+turned upon the question to what extent the negro slaves should count in
+estimating population for the purposes of proportionate representation
+in the lower House. Various suggestions were made to base representation
+upon wealth or taxation and not upon population. For several days the
+debate lasted during very heated weather, but on the night of July 12
+the temperature dropped and with it the emotional temperature of the
+delegates.
+
+Some days previous, namely, June 28, when the debates were becoming so
+bitter that it seemed unlikely that the convention could continue,
+Doctor Franklin, erroneously supposed by many to be an atheist, made
+the following solemn and beautiful appeal to their better natures. He
+said:
+
+    "The small progress we have made after four or five weeks' close
+    attendance and continual reasonings with each other--our different
+    sentiments on almost every question, several of the last producing
+    as many noes as ayes, is, methinks, a melancholy proof of the
+    imperfection of the human understanding. We indeed seem to feel our
+    own want of political wisdom, since we have been running about in
+    search of it. We have gone back to ancient history for models of
+    government, and examined the different forms of those Republics
+    which, having been formed with the seeds of their own dissolution,
+    now no longer exist. And we have viewed modern States all around
+    Europe, but find none of their constitutions suitable to our
+    circumstances.
+
+    "In this situation of this Assembly, groping as it were in the dark
+    to find political truth, and scarce able to distinguish it when
+    presented to us, how has it happened, sir, that we have not hitherto
+    once thought of humbly applying to the Father of Lights to
+    illuminate our understandings?... And have we now forgotten that
+    powerful Friend or do we imagine that we no longer need His
+    assistance? I have lived, sir, a long time, and the longer I live,
+    the more convincing proofs I see of this truth: That _God governs in
+    the affairs of men_. And if a sparrow cannot fall to the ground
+    without His notice, is it probable that an empire can rise without
+    His aid? We have been assured, sir, in the sacred writings, that
+    'except the Lord build the House they labour in vain that build it.'
+    I firmly believe this; and I also believe that without His
+    concurring aid we shall succeed in this political building no better
+    than the builders of Babel. We shall be divided by our little
+    partial local interests; our projects will be confounded, and we
+    ourselves shall become a reproach and byword down to future ages.
+    And what is worse, mankind may hereafter from this unfortunate
+    instance, despair of establishing governments by human wisdom and
+    leave it to chance, war, and conquest.
+
+    "I therefore beg leave to move that henceforth prayers imploring the
+    assistance of Heaven, and its blessings on our deliberations, be
+    held in this Assembly every morning before we proceed to business,
+    and that one or more of the clergy of this city be requested to
+    officiate in that service."
+
+It may surprise my audience to know the sequel. The resolution was voted
+down, partly on the ground that if it became known to the public that
+the convention had finally resorted to prayers it might cause undue
+alarm, but also because the convention was by that time so low in funds
+that, as one of the members said, it did not have enough money to pay a
+clergyman his fees for the service. I suspect that their controlling
+reason was their indisposition to break their self-imposed rule of
+secrecy by contact with the outer world until their work was completed.
+Perhaps they thought that "God helps those who help themselves."
+
+On July 16 the compromise was finally adopted of recognizing the claims
+of the larger States to proportionate representation in the House of
+Representatives, and recognizing the claims of the smaller States by
+according to them equal representation in the Senate. This great result
+was not effected without the first break in the convention, for the
+delegates from New York left in disgust and never returned, with the
+exception of Hamilton, who occasionally attended subsequent sessions.
+Such was the great concession that was made to secure the Constitution;
+and the only respect in which the Constitution to-day cannot be amended
+is that by express provision the equality of representation in the
+Senate shall never be disturbed. Thus it is that to-day some States,
+which have less population than some of the wards in the city of New
+York, have as many votes in the Senate as the great State of New York.
+It is unquestionably a palpable negation of majority rule, for as no
+measure can become a law without the concurrence of the Senate--now
+numbering ninety-six Senators--a combination of the little States, whoso
+aggregate population is not a fifth of the American people, can defeat
+the will of the remaining four-fifths. Pennsylvania and New York, with
+nearly one-sixth of the entire population of the United States, have
+only four votes in ninety-six votes in the Senate.
+
+Fortunately, political alignments have rarely been between the greater
+and the smaller States exclusively. Their equality in the Senate was a
+big price to pay for the Union, but, as the event has shown, not too
+great.
+
+The convention next turned its attention to the Executive and the manner
+of its selection, and upon this point there was the widest contrariety
+of view, but, fortunately, without the acute feeling that the relative
+power of the States had occasioned.
+
+Then the judiciary article was taken up, and there was much earnest
+discussion as to whether the new Constitution should embody the French
+idea of giving to the judiciary, in conjunction with the Executive, a
+revisory power over legislation. Three times the convention voted upon
+this dangerous proposition, and on one occasion it was only defeated by
+a single vote. Fortunately, the good sense of the convention rejected a
+proposition, that had caused in France constant conflicts between the
+Executive and the Judiciary, by substituting the right of the President
+to veto congressional legislation, with the right of Congress, by a
+two-thirds vote of each House, to override the veto, and secondly by an
+implied power in the Judiciary to annul Congressional or State
+legislation, not on the grounds of policy, but on the sole ground of
+inconsistency with the paramount law of the Constitution. In this
+adjustment, the influence of Montesquieu was evident.
+
+These and many practical details had resulted in an expansion of the
+fifteen proposals of the Virginia plan to twenty-three.
+
+Having thus determined the general principles that should guide them in
+their labours, the convention, on July 26 appointed a Committee on
+Detail to embody these propositions in the formal draft of a
+Constitution and adjourned until August 6 to await its report. That
+report, when finally completed, covered seven folio pages, and was found
+to consist of a Preamble and twenty-three Articles, embodying
+forty-three sections. The draft did not slavishly follow the Virginia
+propositions, for the committee embodied some valuable suggestions which
+had occurred to them in their deliberations. Nevertheless, it
+substantially put the Virginia plan into a workable plan which proved to
+be the Constitution of the United States in embryo.
+
+When the committee on detail had made its report on August 6, the
+convention proceeded for over a month to debate it with the most minute
+care. Every day for five weeks, for five hours each day, the members
+studied and debated with meticulous care every sentence of the proposed
+Constitution. Time does not suffice even for the barest statement of the
+many interesting questions which were thus discussed, but they nearly
+ran the whole gamut of constitutional government. Many fanciful ideas
+were suggested but with unvarying good sense they were rejected. Some of
+the results were, under the circumstances, curious. For example,
+although it was a convention of comparatively young men, and although
+the convention could have taken into account the many successful young
+men in public life in Europe--as, for example, William Pitt--they put a
+disqualification upon age by providing that a Representative must be
+twenty-five years of age, a Senator thirty years of age, and a President
+thirty-five years of age. When it was suggested that young men could
+learn by admission to public life, the sententious reply was made that,
+while they could, they ought not to have their education at the public
+expense.
+
+The debates proceeded, however, in better temper, and almost the only
+question that again gave rise to passionate argument was that of
+slavery. The extreme Southern States declared that they would never
+accept the new plan "except the right to import slaves be untouched."
+This question was finally compromised by agreeing that the importation
+of slaves should end after the year 1808. It however left the slave
+population then existing in a state of bondage, and for this necessary
+compromise the nation seventy-five years later was to pay dearly by one
+of the most destructive civil wars in the annals of mankind.
+
+August was now drawing to a close. The convention had been in session
+for more than three months. Of its work the public knew nothing, and
+this notwithstanding the acute interest which the American people, not
+merely facing the peril of anarchy, but actually suffering from it, must
+have taken in the convention. Its vital importance was not
+under-estimated. While its builders, like all master builders, did
+"build better than they knew," yet it cannot be said that they
+under-estimated the importance of their labours. As one of their number,
+Gouveneur Morris said: "The whole human race will be affected by the
+proceedings of this convention." After it adjourned one of its greatest
+participants, James Wilson, of Pennsylvania, said:
+
+    "After the lapse of six thousand years since the creation of the
+    world, America now presents the first instance of a people assembled
+    to say deliberately and calmly and to decide leisurely and peaceably
+    on the form of government by which they will bind themselves and
+    their posterity."
+
+In the absence of any authentic information, the rumour spread through
+the colonies that the convention was about to reconstitute a monarchy by
+inviting the second son of George III, the Bishop of Osnaburg, to be
+King of the United States; and these rumours became so persistent as to
+evoke from the silent convention a semi-official denial. There is some
+reason to believe that a minority of the convention did see in the
+restoration of a constitutional monarchy the only solution of the
+problem.
+
+On September 8 the committee had finally considered and, after
+modifications, approved the draft of the Committee on Detail, and a new
+committee was thereupon appointed "to revise the style of and arrange
+the articles that had been agreed to by the House." This committee was
+one of exceptional strength. There were Dr. William Samuel Johnson, a
+graduate of Oxford and a friend of his great namesake, Samuel Johnson;
+Alexander Hamilton, Gouveneur Morris, a brilliant mind with an unusual
+gift for lucid expression; James Madison, a true scholar in politics,
+and Rufus King, an orator who, in the inflated language of the day, "was
+ranked among the luminaries of the present age."
+
+The convention then adjourned to await the final revision of the draft
+by the Committee on Style.
+
+On September 12 the committee reported. While it is not certain, it is
+believed that its work was largely that of Gouveneur Morris.
+
+September 13 the printed copies of the report of the Committee on Style
+were ready, and three more days were spent by the convention in
+carefully comparing each article and section of this final draft.
+
+On September 15 the work of drafting the Constitution was regarded as
+ended, and it was adopted and ordered to be engrossed for signing.
+
+It may be interesting at this point to give the result of their labours
+as measured in words, and if the framers of the Constitution deserve the
+plaudits of posterity in no other respect they do in the remarkable
+self-restraint which those results revealed.
+
+The convention had been in session for 81 continuous days. Probably
+they had consumed over 300 hours in debate. If their debates had been
+fully reported, they would probably have filled at least fifty volumes,
+and yet the net result of their labours consisted of about 4,000 words,
+89 sentences, and about 140 distinct provisions. As the late Lord Bryce,
+speaking in this age of unbridled expression, both oral and printed, so
+well has said:
+
+    "The Constitution of the United States, including the amendments,
+    may be read aloud in twenty-three minutes. It is about half as long
+    as Saint Paul's Epistle to the Corinthians, and one-fourth as long
+    as the Irish Land Act of 1881. History knows few instruments which
+    in so few words lay down equally momentous rules on a vast range of
+    matters of the highest importance and complexity."
+
+Even including the nineteen amendments, the Constitution, after one
+hundred and thirty-five years of development, does not exceed 7,000
+words. What admirable self-restraint! Possibly single opinions of the
+Supreme Court could be cited which are as long as the whole document of
+which they are interpreting a single phrase. This does not argue that
+the Constitution is an obscure document, for it would be difficult to
+cite any political document in the annals of mankind that was so simple
+and lucid in expression. There is nothing Johnsonese about its style.
+Every word is a word of plain speech, the ordinary meaning of which even
+the man in the street knows. No tautology is to be found and no attempt
+at ornate expression. It is a model of simplicity, and as it flows
+through the reaches of history it will always excite the admiration of
+those who love clarity and not rhetorical excesses. One can say of it as
+Horace said of his favourite Spring:
+
+  _O, fons Bandusiae, splendidior vitro.
+  Dulce digne mero, non sine floribus_.
+
+If I be asked why, if this be true, it has required many lengthy
+opinions of the Supreme Court in the 256 volumes of its Reports to
+interpret its meaning, the answer is that, as with the simple sayings of
+the great Galilean, whose words have likewise been the subject of
+unending commentary, the question is not one of clarity but of
+adaptation of the meaning to the ever-changing conditions of human life.
+Moreover, as with the sayings of the Master or the unequalled verse of
+Shakespeare, questions of construction are more due to the commentators
+than to the text itself.
+
+On September 17 the convention met for the last time. The document was
+engrossed and laid before the members for signature. Of the fifty-five
+members who had attended, only thirty-nine remained. Of those, a number
+were unwilling to sign as individuals. While the members had not been
+unconscious of the magnitude of their labours, they were quite
+insensible of the magnitude of their achievement. Few there were of the
+convention who were enthusiastic about this result. Indeed, as the
+document was ready for signature, it became a grave question whether the
+remnant which remained had sufficient faith in their own work to
+subscribe their names, and if they failed to do so its adoption by the
+people would have been impossible. It was then that Doctor Franklin
+rendered one of the last and greatest services of his life. With
+ingratiating wit and with all the impressiveness that his distinguished
+career inspired, Franklin thus spoke:
+
+    "I confess that there are several parts of this Constitution which I
+    do not at present approve, but I am not sure I shall never approve
+    them. For having lived long I have experienced many instances of
+    being obliged by better information or fuller consideration, to
+    change opinions even on important subjects, which I once thought
+    right, but found to be otherwise. It is therefore that the older I
+    grow, the more apt I am to doubt my own judgment and to pay more
+    respect to the judgment of others. Most men indeed as well as most
+    sects in religion think themselves in possession of all truth, and
+    that wherever others differ from them it is so far error. Steele, a
+    Protestant, in a dedication tells the Pope that the only difference
+    between our Churches in their opinions of the certainty of their
+    doctrines is, the Church of Rome is infallible and the Church of
+    England is never in the wrong. But though many private persons think
+    almost as highly of their own infallibility as of that of their
+    sect, few express it so naturally as a certain French lady, who in a
+    dispute with her sister, said: 'I don't know how it happens, sister,
+    but I meet with nobody but myself that's always in the right.'--_Il
+    n'y a que moi qui a toujours raison_.
+
+    "In these sentiments, sir, I agree to this Constitution with all
+    its faults, if they are such; because I think a general government
+    necessary for us, and there is no form of government but what may be
+    a blessing to the people, if well administered, and I believe
+    further that this is likely to be well administered for a course of
+    years, and can only end in despotism as other forms have done before
+    it, when the people shall become so corrupted as to need despotic
+    government, being incapable of any other. I doubt, too, whether any
+    other convention we can obtain may be able to make a better
+    Constitution. For when you assemble a number of men to have the
+    advantage of their joint wisdom you inevitably assemble with those
+    men all their prejudices, their passions, their errors of opinion,
+    their local interests, and their selfish views. From such an
+    assembly can a perfect production be expected? It therefore
+    astonishes me, sir, to find this system approaching so near to
+    perfection as it does.... Thus, I consent, sir, to this Constitution
+    because I expect no better, and because I am not sure that it is not
+    the best. The opinions I have had of its errors I sacrifice to the
+    public good, I have never whispered a syllable of them abroad.
+    Within these walls they were born and here they shall die. If every
+    one of us in returning to our constituents were to report the
+    objections he has had to it and endeavour to gain partisans in
+    support of them, we might prevent its being generally received, and
+    thereby lost all the salutary effects and great advantages resulting
+    naturally in our favour among foreign nations as well as among
+    ourselves from our real or apparent unanimity.
+
+    "On the whole, sir, I cannot help expressing a wish that every
+    member of the convention who may still have objections to it, would
+    with me, on this occasion doubt a little of his own
+    infallibility--and to make manifest our unanimity, put his name to
+    this instrument."
+
+Truly this spirit of Doctor Franklin could be profitably invoked in this
+day and generation, when nations are so intolerant of the ideas of other
+nations.
+
+As the members, moved by Franklin's humorous and yet moving appeal, came
+forward to subscribe their names, Franklin drew the attention of some of
+the members to the fact that on the back of the President's chair was
+the half disk of a sun, and, with his love of metaphor, he said that
+painters had often found it difficult to distinguish in their art a
+rising from a setting sun. He then prophetically added:
+
+    "I have often and often in the course of the sessions and the
+    vicissitudes of my hopes and fears in its issues, looked at that
+    behind the President without being able to tell whether it was
+    rising or setting. But now at length I have the happiness to know
+    that it is a rising and not a setting sun."
+
+Time has verified the genial doctor's prediction. The career of the new
+nation thus formed has hitherto been a rising and not a setting sun. He
+had in his sixty years of conspicuously useful citizenship--and perhaps
+no nation ever had a more untiring and unselfish servant--done more than
+any American to develop the American Commonwealth, but like Moses, he
+was destined to see the promised land only from afar, for the new
+Government had hardly been inaugurated, before Franklin died, as full of
+years as honours. Prophetic as was his vision, he could never have
+anticipated the reality of to-day, for this nation, thus deliberately
+formed in the light of reason and without blood or passion, is to-day,
+by common consent, one of the greatest and, I trust I may add, one of
+the noblest republics of all time.
+
+
+
+
+_III. The Political Philosophy of the Constitution_
+
+
+In my last address I left Doctor Franklin predicting to the discouraged
+remnant of the constitutional convention that the nation then formed
+would be a "rising sun" in the constellation of the nations. The sun,
+however, was destined to rise through a bank of dark and murky clouds,
+for the Constitution could not take effect until it was ratified by nine
+of the thirteen States; and when it was submitted to the people, who
+selected State conventions for the purpose of ratifying or rejecting the
+proposed plan of government, a bitter controversy at once ensued between
+two political parties, then in process of formation, one called the
+Constitution ratified without controversy. In the remaining ten the
+struggle was long and arduous, and nearly a year passed before the
+requisite nine States gave their assent. Two of the States refused to
+become parts of the new nation, even after it began, and three years
+passed before the thirteen States were re-united under the Constitution.
+
+It could not have been ratified had there not been an assurance that
+there would be immediate amendments to provide a Bill of Rights to
+safeguard the individual. Thus came into existence the first ten
+amendments to the Constitution, with their perpetual guaranty of the
+fundamental rights of religion, freedom of speech and of the Press, the
+right of assemblage, the immunity from unreasonable searches and
+seizures, the right of trial by jury, and similar guarantees of
+fundamental individual rights.
+
+Distrustful as the American people were of the new Constitution, they
+yet had the political sagacity to prefer its imperfections, whatever
+they imagined them to be, to the mad spirit of innovation; and in order
+that the great instrument should not, through the excesses of party
+passion or the temporary caprices of fleeting generations, speedily
+become a mere "scrap of paper" they very wisely provided that no
+amendment should, in the future, be made unless it was proposed by at
+least two-thirds of the Senate and the House of Representatives and
+ratified by three-fourths of the States through their legislatures or
+through special conventions. This was only one of many striking
+negations of the principle of majority rule. As a result of this
+provision, if we count the first ten amendments as virtually part of the
+original document, only nine amendments have been adopted in 185 years,
+and of these, excepting the amendments which ended slavery as the result
+of the Civil War, only the last three, passed in recent years partly
+through the relaxing influence of the world war, mark a serious
+departure from the basic principles of the Constitution.
+
+This stability is the more remarkable when we recall the profound and
+revolutionary change that has taken place in the social life of man
+since the Constitution was adopted. It was framed at the very end of the
+pastoral-agricultural age of humanity. The industrial revolution, which
+has more profoundly affected man in the last century and a half than all
+the changes which had theretofore taken place in the life of man since
+the cave-dweller, was only then beginning. Measured in terms of
+mechanical power, men when the Constitution was formed were Lilliputians
+as compared with the Brobdingnagians of our day, when man outflies the
+eagle, outswims the fish, and by his conquest and utilization of the
+invisible forces of nature has become the superman; and yet the
+Constitution of 1787 is, in most of its essential principles, still the
+Constitution of 1922. This surely marks it as a marvel in statecraft
+and can only be explained by the fact that the Constitution was
+developed by a people who, as "children brave and free of the great
+mother-tongue," had a real genius for self-government and its essential
+element, the spirit of self-restraint.
+
+While it is true that the _text_ of the instrument has suffered almost
+as little change as the Nicene Creed, yet it would be manifest error to
+suggest that in its development by practical application the
+Constitution has not undergone great changes.
+
+The first and greatest of all its expounders, Chief Justice Marshall,
+said, in one of his greatest opinions, that the Constitution was--
+
+    "intended to endure for ages to come, and consequently to be
+    _adapted_ to the various crises of human affairs. To have prescribed
+    the means by which government should in all future times execute
+    its powers would have been to change entirely the character of the
+    instrument and to give it the properties of a legal code. It would
+    have been an unwise attempt to provide by immutable rules for
+    exigencies which, if foreseen at all, must have been foreseen dimly,
+    and can best be provided for as they occur."
+
+In this great purpose of enumerating rather than defining the powers of
+government its framers were supremely wise. While it was marvellously
+sagacious in what it provided, it was wise to the point of inspiration
+in what it left unprovided.
+
+Nothing is more admirable than the self-restraint of men who, venturing
+upon an untried experiment, and after debating for four months upon the
+principles of government, were content to embody their conclusions in
+not more than four thousand words. To this we owe the elasticity of the
+instrument. Its vitality is due to the fact that, by usage, judicial
+interpretation, and, when necessary, formal amendment, it can be thus
+adapted to the ever-accelerating changes of the most progressive age in
+history, and that a people have administered the Constitution who, in
+the process of such adaptation, have generally shown the same spirit of
+conservative self-restraint as did the men who framed it.
+
+The Constitution is neither, on the one hand, a Gibraltar rock, which
+wholly resists the ceaseless washing of time or circumstance, nor is it,
+on the other hand, a sandy beach, which is slowly destroyed by the
+erosion of the waves. It is rather to be likened to a floating dock,
+which, while firmly attached to its moorings, and not therefore the
+caprice of the waves, yet rises and falls with the tide of time and
+circumstance.
+
+While in its practical adaptation to this complex age the men who framed
+it, if they could "revisit the glimpses of the moon," would as little
+recognize their own handiwork as their own nation, yet they would still
+be able to find in successful operation the essential principles which
+they embodied in the document more than a century ago.
+
+Its success is also due to the fact that its framers were little
+influenced by the spirit of doctrinarianism. They were not empiricists,
+but very practical men. This is the more remarkable because they worked
+in a period of an emotional fermentation of human thought. The
+long-repressed intellect of man had broken into a violent eruption like
+that of a seemingly extinct volcano.
+
+From the middle of the eighteenth century until the end of the French
+Revolution the masses everywhere were influenced by the emotional, and
+at times hysterical, abstractions of the French encyclopedists; and that
+these had influenced thought in the American colonies is readily shown
+in the preamble of the Declaration of Independence, with its
+unqualified assertion of the equality of men and the absolute right of
+self-determination. The Declaration sought in its noble idealism to make
+the "world safe for democracy," but the Constitution attempted the
+greater task of making democracy safe for the world by inducing a people
+to impose upon themselves salutary restraints upon majority rule.
+
+Fortunately, the framers of the Constitution had learned a rude and
+terrible lesson in the anarchy that had followed the War of
+Independence. They were not so much concerned about the rights of man as
+about his duties, and their great purpose was to substitute for the
+visionary idealism of a rampant individualism the authority of law. Of
+the hysteria of that time, which was about to culminate in the French
+Revolution, there is no trace in the Constitution.
+
+They were less concerned about Rousseau's social contract than to
+restore law and order. Hard realities and not generous and impossible
+abstractions interested them. They had suffered grievously for more than
+ten years from misrule and had a distaste for mere phrase-making, of
+which they had had a satiety, for the Constitution, in which there is
+not a wasted word, is as cold and dry a document as a problem in
+mathematics or a manual of parliamentary law. Its mandates have the
+simplicity and directness of the Ten Commandments, and, like the
+Decalogue, it consists more of what shall not be done than what shall be
+done. In this freedom from empiricism and sturdy adherence to the
+realities of life, it can be profitably commended to all nations which
+may attempt a similar task.
+
+While the Constitution apparently only deals with the practical and
+essential details of government, yet underlying these simply but
+wonderfully phrased delegations of power is a broad and accurate
+political philosophy, which goes far to state the "law and the
+prophets" of free government.
+
+These essential principles of the Constitution may be briefly summarized
+as follows:
+
+
+
+1.
+
+
+_The first is representative government_.
+
+Nothing is more striking in the debates of the convention than the
+distrust of its members, with few exceptions, of what they called
+"democracy." By this term they meant the power of the people to
+legislate directly and without the intervention of chosen
+representatives. They believed that the utmost concession that could be
+safely made to democracy was the power to select suitable men to
+legislate for the common good, and nothing is more striking in the
+Constitution than the care with which they sought to remove the powers
+of legislation from the _direct_ action of the people. Nowhere in the
+instrument is there a suggestion of the initiative or referendum.
+
+Even an amendment to the Constitution could not be directly proposed by
+the people in the exercise of their residual power or adopted by them.
+As previously said, it could only be proposed by two-thirds of the House
+and the Senate, and then could only become effective, if ratified by
+three-fourths of the States, acting, not by a popular vote, but through
+their chosen representatives either in their legislatures or special
+conventions. Thus they denied the power of a majority to alter even the
+form of government. Moreover, they gave to the President the power to
+nullify laws passed by a majority of the House and Senate by his simple
+veto, and yet, fearful of an unqualified power of the President in this
+respect, they provided that the veto itself should be vetoed, if
+two-thirds of the Senate and House concurred in such action. Moreover,
+the great limitations of the Constitution, which forbid the majority, or
+even the whole body of the House and Senate, to pass laws either for
+want of authority or because they impair fundamental rights of
+individuals, are as emphatic a negation of an absolute democracy as can
+be found in any form of government.
+
+Measured by present-day conventions of democracy, the Constitution is an
+undemocratic document. The framers believed in representative
+government, to which they gave the name "Republicanism" as the
+antithesis to "democracy." The members of the Senate were to be selected
+by State legislatures, and the President himself was, as originally
+planned, to be selected by an electoral college similar to the College
+of Cardinals.
+
+The debates are full of utterances which explain this attitude of mind.
+Mr. Gerry said: "The evils we experience flow from the excesses of
+democracy. The people are the dupes of pretended patriots." Mr.
+Randolph, the author of the Virginia plan, observed that the general
+object of the Constitution was to provide a cure for the evils under
+which the United States laboured; that in tracing these evils to their
+origin every man had found it in the tribulation and follies of
+democracy; that some check, therefore, was to be sought for against this
+tendency of our Government.
+
+Alexander Hamilton remarked, on June 18, that--
+
+    "the members most tenacious of republicanism were as loud as any in
+    declaiming against the evils of democracy."
+
+He added:
+
+    "Give all the power to the many and they will oppress the few. Give
+    all the power to the few and they will oppress the many. Both ought,
+    therefore, to have the power that each may defend itself against the
+    other."
+
+Perhaps the attitude of the members is thus best expressed by James
+Madison, in the 10th of the Federalist papers:
+
+    "A pure democracy, by which I mean a State consisting of a small
+    number of citizens, who assemble and administer the government in
+    person, can admit of no cure for the mischiefs of faction. Such
+    democracies have ever been spectacles of turbulence and contention,
+    and have often been found incompatible with the personal security
+    and rights of property, and have generally been as short in their
+    lives as they have been violent in their deaths."
+
+Undoubtedly, the framers of the Constitution in thus limiting popular
+rule did not take sufficient account of the genius of an
+English-speaking people. A few of their number recognized this.
+Franklin, a self-made man, believed in democracy and doubted the
+efficacy of the Constitution unless it was, like a pyramid, broad-based
+upon the will of the people.
+
+Colonel Mason, of Virginia, who was also of the Jeffersonian school of
+political philosophy, said:
+
+    "Notwithstanding the oppression and injustice experienced among us
+    from democracy, the genius of the people is in favour of it, and the
+    genius of the people must be consulted."
+
+In this they were true prophets, for the American people have refused to
+limit democracy as narrowly and rigidly as the framers of the
+Constitution clearly intended. The most notable illustration of this is
+the selection of the President. It was never contemplated that the
+people should directly select the President, but that a chosen body of
+electors should, with careful deliberation, make this momentous choice.
+While, in form, the system persists to this day, from the very beginning
+the electors simply vote as the people who select them desire. It should
+here be noted that Thomas Jefferson, the great Democrat and draftsman of
+the Declaration of Independence, was not a member of the convention.
+During its sessions he was in France. He was instrumental in securing
+the first ten Amendments and the subsequent adaptation of the
+Constitution to meet the democratic instincts of the American people is
+largely due to his great leadership.
+
+Moreover, the spirit of representative government has greatly changed
+since the Constitution was adopted. The ideal of the earlier time was
+that so nobly expressed by Edmund Burke in his address to the electors
+of Bristol, for the framers believed that a representative held a
+judicial position of the most sacred character, and that he should vote
+as his judgment and conscience dictated without respect to the wishes of
+his constituents. To-day, and notably in the last half century, the
+contrary belief, due largely to Jefferson's political ideals, has so
+influenced American politics that the representatives of the people,
+either in the legislature or the executive departments of the
+government, are considered by the masses as only the mouthpieces of the
+people who select them, and to ignore their wishes is regarded as
+virtually a betrayal of a trust and the negation of democracy.
+
+For this change in attitude there has been much justification, for in my
+country, as elsewhere, the people do not always select their best men as
+representatives, and, with the imperfections of human nature, there has
+been so much of ignorance and, at times, venality, that the instinct of
+the people is to take the conduct of affairs into their own hands. On
+the other hand, this change of attitude has led, in many instances, to
+government by organized minorities, for, with the division of the masses
+into political parties, it is easy for an organized minority to hold the
+balance of power, and thus impress its will upon majorities. Time may
+yet vindicate the theory of the framers that the limit of democracy is
+the selection of true and tried representatives.
+
+
+
+2.
+
+
+_The second and most novel principle of the Constitution is its dual
+form of Government._
+
+This did constitute a unique contribution to the science of politics.
+This was early recognized by de Tocqueville, one of the most acute
+students of the Constitution, who said that it was based "upon a wholly,
+novel theory, which may be considered a great discovery in modern
+political science."
+
+Previous to the Constitution it had not been thought possible to divide
+sovereignty, or at least to have two different sovereignties moving as
+planets in the same orbit. Therefore, all previous federated governments
+had been based upon the plan that a league could only effect its will
+through the constituent States and that the citizens in these States
+owed no direct allegiance to the league, but only to the States of which
+they were members. The Constitution, however, developed the idea of a
+dual citizenship. While the people remained citizens of their respective
+States in the sphere of government which was reserved to the States, yet
+they directly became citizens of the central government, and, as such,
+ceased to be citizens of the several States in the sphere of government
+delegated to the central power; and this allegiance was enforced by the
+direct action of the central government on the citizens as individuals.
+Thus has been developed one of the most intricately complex governmental
+systems in the world.
+
+At the time of the adoption of the Constitution this division of
+jurisdiction was quite feasible, for, geographically, the various States
+were widely separated, and the lack of economic contact made it easy for
+each government to function without serious conflict. The framers,
+however, did not sufficiently reckon with the mechanical changes in
+society that were then beginning. They did not anticipate, and could not
+have anticipated, the centripetal influences of steam and electricity
+which have woven the American people into an indissoluble unit for
+commercial and many other purposes. As a result many laws of the Federal
+Government, in their incidences in this complex age, directly impinge
+upon rights of the State governments, and _vice versa_, and the
+practical application of the Constitution has required a very subtle
+adaptation of a form of government which was enacted in a primitive age
+to a form of government of a complex age.
+
+Take, for example, the power over commerce. According to the
+Constitution, the Federal Government had plenary power over foreign
+commerce and commerce _between_ the States, but the power over commerce
+_within_ a State was reserved to State governments. This presupposed the
+power of Government to divide commerce into two water-tight
+compartments, or, at least, to regard the two spheres of power as
+parallel lines that would never meet; whereas with the coming of the
+railroad, steamship and the telegraph commerce has become so unified
+that the parallel lines have become lines of interlacing zigzags. To
+adapt the commerce clause of the Constitution to these changed
+conditions has required, in the highest degree, the constructive genius
+of the Supreme Court of the United States, and, in a series of very
+remarkable decisions, which are contained in 256 volumes of the official
+reports, that great tribunal has tried to draw a line between
+inter-State and domestic commerce as nearly to the original plans of the
+framers as it was possible; but obviously there has been so much
+adaptation to make this possible that if Washington, Franklin, Madison
+and Hamilton could revisit the nation they created they would not
+recognize their own handiwork.
+
+For the same reason, the dual system of government has been profoundly
+modified by the great elemental forces of our mechanical age, so that
+the scales, which try to hold in nice equipoise the Federal Government
+on the one hand and the States on the other, have been greatly
+disturbed. Originally, the States were the powerful political entities,
+and the central government a mere agent for certain specific purposes;
+but, in the development of the Constitution, the nation has naturally
+become of overshadowing importance, while the States have relatively
+steadily diminished in power and prestige.
+
+These inevitable tendencies in American politics are called
+"centralization," and while for nearly a century a great political party
+bitterly contested its steady progress, due to the centripetal
+influences above indicated, yet the contest was long since abandoned as
+a hopeless one, and the struggle to-day is rather to keep, so far as
+possible, the inevitable tendency measurably in check.
+
+Nevertheless, it would be erroneous to suggest that the dual system of
+government is a failure. It still endures in providing a large measure
+of authority to the States in their purely domestic concerns, and, in a
+country that extends from the Atlantic to the Pacific, and from the
+Lakes to the Gulf, whose northern border is not very far from the Arctic
+Circle, and whose southern border is not many degrees from the Equator,
+there are such differences in the habits, conventions, and ideals of the
+people that without this dual form of government the Constitution would
+long since have broken down. It is not too much to say that the success
+with which the framers of the Constitution reconciled national supremacy
+and efficiency with local self-government is one of the great
+achievements in the history of mankind.
+
+
+
+3.
+
+
+_The third principle was the guaranty of individual liberty through
+constitutional limitations._
+
+This marked another great contribution of America to the science of
+government. In all previous government building, the State was regarded
+as a sovereign, which could grant to individuals or classes, out of its
+plenary power, certain privileges or exemptions, which were called
+"liberties." Thus the liberties which the barons wrung from King John at
+Runnymede were virtually exemptions from the power of government. Our
+fathers did not believe in the sovereignty of the State in the sense of
+absolute power, nor did they believe in the sovereignty of the people in
+that sense. The word "sovereignty" will not be found in the Constitution
+or the Declaration of Independence. They believed that each individual,
+as a responsible moral being, had certain "inalienable rights" which
+neither the State nor the people could rightfully take from him.
+
+This conception of individualism, enforced in courts of law against
+executives and legislatures, was wholly new and is the distinguishing
+characteristic of American constitutionalism. As to such reserved
+rights, guaranteed by Constitutional limitations, and largely by the
+first ten amendments to the Constitution, a man, by virtue of his
+inherent and God-given dignity as a human soul, has rights, such as
+freedom of the Press, liberty of speech, property rights, and religious
+freedom, which even one hundred millions of people cannot rightfully
+take from him, without amending the Constitution. The framers did not
+believe that the oil of anointing that was supposed to sanctify the
+monarch and give him infallibility had fallen upon the "multitudinous
+tongue" of the people to give it either infallibility or omnipotence.
+They believed in individualism. They were animated by a sleepless
+jealousy of governmental power. They believed that the greater such
+power, the greater the danger of its abuse. They felt that the
+individual could generally best work out his own salvation, and that his
+constant prayer to Government was that of Diogenes to Alexander: "Keep
+out of my sunlight." The worth and dignity of the human soul, the free
+competition of man and man, the nobility of labour, the right to work,
+free from the tyranny of state or class, this was their gospel.
+Socialism was to them abhorrent.
+
+This theory of government gave a new dignity to manhood. It said to the
+State: "There is a limit to your power. Thus far and no further, and
+here shall thy proud waves be stayed."
+
+
+
+4.
+
+
+_Closely allied to this doctrine of limited governmental powers, even by
+a majority, is the fourth principle of an independent judiciary_.
+
+It is the balance wheel of the Constitution, and to function it must be
+beyond the possibility of attack and destruction. My country was founded
+upon the rock of property rights and the sanctity of contracts. Both the
+nation and the several States are forbidden to impair the obligation of
+contracts, or take away life, liberty, or property "without due process
+of law." The guarantee is as old as Magna Charta; for "due process of
+law" is but a paraphrase of "the law of the land," without which no
+freeman could be deprived of his liberties or possessions.
+
+"Due process of law" means that there are certain fundamental principles
+of liberty, not defined or even enumerated in the Constitution, but
+having their sanction in the free and enlightened conscience of just
+men, and that no man can be deprived of life, liberty, or property,
+except in conformity with these fundamental decencies of liberty. To
+protect these even against the will of a majority, however large, the
+judiciary was given unprecedented powers. It threw about the individual
+the solemn circle of the law. It made the judiciary the final conscience
+of the nation. Your nation cherishes the same primal verities of
+liberty, but with you, the people in Parliament, is the final judge. We,
+however, are not content that a majority of the Legislature shall
+override inviolable individual rights, about which the judiciary is
+empowered to throw the solemn circle of the law.
+
+This august power has won the admiration of the world, and by many is
+regarded as a novel contribution to the science of government. The idea,
+however, was not wholly novel. As previously shown, four Chief Justices
+of England had declared that an Act of Parliament, if against common
+right and reason, could be treated as null and void; while in France the
+power of the judiciary to refuse efficacy to a law, unless sanctioned by
+the judiciary, had been the cause of a long struggle for at least three
+centuries between the French monarch and the courts of France. However,
+in England the doctrine of the common law yielded to the later doctrine
+of the omnipotence of Parliament, while in France the revisory power of
+the judiciary was terminated by the French Revolution.
+
+The United States, however, embodied it in its form of government and
+thus made the judiciary, and especially the Supreme Court, the balance
+wheel of the Constitution. Without such power the Constitution could
+never have lasted, for neither executive officers nor legislatures are
+good judges of the extent of their own powers.
+
+Nothing more strikingly shows the spirit of unity which the Constitution
+brought into being than the unbroken success with which the Supreme
+Court has discharged this difficult and most delicate duty. The
+President is the Commander-in-Chief of the Army and the Navy and can
+call them to his aid. The legislature has almost unlimited power through
+its control of the public purse. The States have their power reinforced
+by armed forces, and some of them are as great in population and
+resources as many of the nations of Europe. The Supreme Court, however,
+has only one officer to execute its decrees, called the United States
+Marshal; and yet, without sword or purse, and with only a high sheriff
+to enforce its mandates, when the Supreme Court says to a President or
+to a Congress or to the authorities of a great--and, in some respects,
+sovereign--State that they must do this or must refrain from doing that,
+the mandate is at once obeyed. Here, indeed, is the American ideal of "a
+government of laws and not of men" most strikingly realized; and if the
+American Constitution, as formulated and developed, had done nothing
+else than to establish in this manner the supremacy of law, even as
+against the overwhelming sentiment of the people, it would have
+justified the well-known encomium of Mr. Gladstone.
+
+It must be added, however, that in one respect this function of the
+judiciary has had an unfortunate effect in lessening rather than
+developing in the people the sense of constitutional morality. In your
+country the power of Parliament is omnipotent, and yet in its
+legislation it voluntarily observes these great fundamental decencies
+of liberty which in the American Constitution are protected by formal
+guarantees. This can only be true because either your representatives in
+Parliament have a deep sense of constitutional morality, or that the
+constituencies which select them have so much sense of constitutional
+justice that their representatives dare not disregard these fundamental
+decencies of liberty.
+
+In the United States, however, the confidence that the Supreme Court
+will itself protect these guaranties of liberty has led to a diminution
+of the sense of constitutional morality, both in the people and their
+representatives. It abates the vigilance which is said to be ever the
+price of liberty.
+
+Laws are passed which transgress the limitations of the Constitution
+without adequate discussion as to their unconstitutional character, for
+the reason that the determination of this fact is erroneously supposed
+to be the exclusive function of the judiciary.
+
+The judiciary, contrary to the common supposition, has no plenary power
+to nullify unconstitutional laws. It can only do so when there is an
+irreconcilable and indubitable repugnancy between a law and the
+Constitution; but obviously laws can be passed from motives that are
+anti-constitutional, and there is a wide sphere of political discretion
+in which many acts can be done which, while politically
+anti-constitutional, are not juridically unconstitutional. For this
+reason, the undue dependence upon the judiciary to nullify every law
+which either in form, necessary operation, or motive transgresses the
+Constitution has so far lessened the vigilance of the people to protect
+their own Constitution as to lead to its serious impairment.
+
+
+
+5.
+
+
+_The fifth fundamental principle was a system of governmental checks and
+balances_.
+
+The founders of the Republic were not enamoured of power. As they viewed
+human history, the worst evils of government were due to excessive
+concentration of power, which like Othello's jealousy "makes the meat it
+feeds on."
+
+This system of checks and balances again illustrates that the
+Constitution is the great negation of unrestrained democracy. The
+framers believed that a people was best governed that was least
+governed. Therefore, their purpose was not so much to promote efficiency
+in legislation as to put a brake upon precipitate action.
+
+Time does not suffice to state the intricate system of checks and
+balances whereby the legislature acts as a check upon the executive and
+the executive upon the legislature, and the Supreme Court upon both.
+When the Republic was small, and its public affairs were few, this
+system of checks and balances worked admirably, but to-day, when the
+nation is one of the greatest in the world, and its public affairs are
+of the most important and complicated character, and often require
+speedy action, it may be questioned whether the system is not now an
+undue brake upon governmental efficiency, and does _not_ require some
+modification to ensure efficiency. Indeed, it is a serious question with
+many thoughtful Americans whether the growth of the United States has
+not put an excessive strain upon its governmental machinery.
+
+This system was in part due to the confident belief of the framers of
+the Constitution in the Montesquieu doctrine of the division of
+government into three independent departments--legislative, executive
+and judicial; but experience has shown how difficult it is to apply this
+doctrine in its literal rigidity. One result of the doctrine was the
+mistaken attempt to keep the legislative and the executive as far apart
+as possible. The Cabinet system of parliamentary government was not
+adopted. While the President can appear before Congress and express his
+views, his Cabinet is without such right. In practice, the gulf is
+bridged by constant contact between the Cabinet and the committees of
+Congress, but this does not wholly secure speedy and efficient
+co-operation between the two departments. As I speak, a movement is in
+progress, with the sanction of President Harding, to permit members of
+his Cabinet to appear in Congress and thus defend directly and in person
+the policies of the Executive.
+
+This separation of the two departments, which causes so much friction,
+has been emphasized by one feature of the Constitution which again marks
+its distrust of democracy, namely the fixed tenure of office. The
+Constitution did not intend that public officials should rise or fall
+with the fleeting caprices of a constituency. It preferred to give the
+President and the members of Congress a fixed term of office, and,
+however unpopular they might become temporarily, they should have the
+right and the opportunity to proceed even with unpopular policies, and
+thus challenge the final verdict of the people.
+
+If a parliamentary form of government, immediately responsive to
+current opinion as registered in elections, is the great desideratum,
+then the fixed tenure of offices is the vulnerable Achilles-heel of our
+form of government. In other countries the Executive cannot survive a
+vote of want of confidence by the legislature. In America, the
+President, who is merely the Executive of the legislative will,
+continues for his prescribed term, though he may have wholly lost the
+confidence of the representatives of the people in Congress. While this
+makes for stability in administration and keeps the ship of state on an
+even keel, yet it also leads to the fatalism of our democracy, and often
+the "native hue" of its resolution is thus "sicklied o'er with the pale
+cast of thought." Take a striking instance. I am confident that after
+the sinking of the _Lusitania_, the United States would have entered the
+world war, if President Wilson's tenure of power had then depended upon
+a vote of confidence.
+
+
+
+6.
+
+
+_The sixth fundamental principle is the joint power of the Senate and
+the Executive over the foreign relations of the Government_.
+
+I need not dwell at length upon this unique feature of our
+constitutional system, for since the Versailles Treaty, the world has
+become well acquainted with our peculiar system under which treaties are
+made and war is declared or terminated. Nothing, excepting the principle
+of local rule, was of deeper concern to the framers of the Constitution.
+When it was framed, it was the accepted principle of all other nations
+that the control of the foreign relations of the Government was the
+exclusive prerogative of the Executive. In your country the only
+limitation upon that power was the control of Parliament over the purse
+of the nation, and some of the great struggles in your history related
+to the attempt of the Crown to exact money to carry on the wars without
+a Parliament grant.
+
+The framers were unwilling to lodge any such power in the Executive,
+however great his powers in other respects. This was primarily due to
+the conception of the States that then prevailed. While they had created
+a central government for certain specified purposes, they yet regarded
+themselves as sovereign nations, and their representatives in the Senate
+were, in a sense, their ambassadors. They were as little inclined to
+permit the President of the United States to make treaties or declare
+war at will in their behalf as the European nations would be to-day to
+vest a similar authority in the League of Nations. It was, therefore,
+first proposed that the power to make treaties and appoint diplomatic
+representatives should be vested exclusively in the Senate, but as that
+body was not always in session, this plan was so far modified as to give
+the President, who is always acting, the power to _negotiate_ treaties
+"with the advice and consent of the Senate." As to making war, the
+framers were not willing to entrust the power even to the President and
+the Senators, and it was therefore expressly provided that only Congress
+could take this momentous step.
+
+Here, again, the theory of the Constitution was necessarily somewhat
+modified in practical administration, for under the power of nominating
+diplomatic representatives, negotiating treaties, and in general, of
+executing the laws of the nation, the principle was soon evolved that
+the conduct of foreign affairs was primarily the function of the
+President, with the limitation that the Senate must concur in diplomatic
+appointments and in the validity of treaties, and that only both Houses
+of Congress could jointly declare war. This cumbrous system necessarily
+required that the President in conducting the foreign relations of the
+Government should keep in touch with the Senate, and such was the
+accepted procedure throughout the history of the nation until President
+Wilson saw fit to ignore the Senate, even when the Senate had indicated
+its dissent in advance to some of his policies at the Versailles
+Conference.
+
+I suppose that since that conference no part of our constitutional
+system has caused more adverse comment in Europe than this system. It
+often handicaps the United States from taking a speedy and effectual
+part in international negotiations, although if the President and the
+Senate be in harmony and collaborate in this joint responsibility, there
+is no necessary reason why this should be so.
+
+I share the view of many Americans that this provision of the
+Constitution was wise and salutary, especially at this time, when the
+United States has taken such an important position in the councils of
+civilization. The President is a very powerful Executive, and his
+tenure, while short, is fixed. Generally he is elected by little more
+than a majority of the people, and sometimes through the curious
+workings of the electoral college system, he has been only the choice
+of a minority of the electorate. For these reasons, the framers of the
+Constitution were unwilling to vest in the President exclusively the
+immeasurable power of pledging the faith, man-power, and resources of
+the nation and of declaring war. The heterogeneous character of our
+population especially emphasizes the wisdom of this course, for it would
+be difficult, if not impossible, for an American President to make an
+offensive and defensive alliance with any nation or declare war against
+another nation without running counter to the racial interests and
+passions of a substantial part of the American nation. For better or
+worse, the United States has limited, but not destroyed, as the world
+war showed, its freedom to antagonize powerful nations from whose people
+it has drawn large numbers of its own citizenship. The domestic harmony
+of the nation requires that before the United States assumes treaty
+obligations or makes war such policy shall represent the largely
+preponderating sentiment of its people, and nothing could more
+effectually secure this end than to require the President, before making
+a treaty, to secure the assent of two-thirds of the Senate and a
+majority of both Houses of Congress before making war.
+
+While this may lead, as it has in recent years, to temporary and
+regrettable embarrassments, yet in the long run, it is not only better
+for the United States, but it is even to the best interests of other
+nations, for in this way they are safeguarded against the possible
+action of an Executive with whom racial instincts might still be very
+influential. In your country, where the Government of the day is subject
+to immediate dismissal for want of confidence, such power over foreign
+relations can be safely entrusted to a few men, but in the United
+States, with its fixed tenures of office, a President could pledge the
+faith and involve his nation in war against the interests and will of
+the people. Suppose the President had unlimited power over our foreign
+relations and that within the next ten years an American, whose parents
+were born in any European nation, was elected on purely domestic issues,
+he could, with his assured four years of power, bring about a new
+alignment of nations and shake the political equilibrium of the world.
+The Constitution wisely refused to grant such a power. Hence the
+provision for the concurrence of the legislative representatives of the
+nation. At all events, it constitutes a system which, as the last
+presidential election showed, the American people will not willingly
+forgo. It is true that this system makes it difficult for the United
+States to participate effectively in the main purpose of the League of
+Nations to enforce peace by joint action at Geneva, but to ask the
+United States to surrender a vital part of its constitutional system,
+upon which its domestic peace so largely depends, in order to promote
+the League, seems to me as unreasonable as it would be to ask your
+country to abolish the Crown, to which it is sincerely attached as a
+vital part of its system, as a contribution towards international
+co-operation. You would not surrender such an integral part of your
+system, and therefore it is not reasonable to expect a similar sacrifice
+on our part, even though the meritorious purposes of the League be
+freely recognized.
+
+I have thus summarized briefly and most inadequately some of the
+essential principles of the Constitution. I have only been able to
+suggest very impressionistically what they are and the lessons to be
+drawn from them. If I were able to deliver a dozen addresses on the
+subject in this historic Hall and with this indulgent audience I would
+not scratch even the surface. To understand the Constitution of the
+United States you must not only read the text but the thousands of
+opinions rendered in the last 130 years by the Supreme Court in its
+great task of interpreting this wonderful document. Few documents have
+been the subject of more extended commentaries. The four thousand words
+have been meticulously examined through intellectual microscopes in
+judicial opinions, textbooks, and other commentaries which are as "thick
+as autumnal leaves that strow the brooks in Vallombrosa."
+
+One can say of this document as Dr. Furness, in his variorum edition of
+_Hamlet_, says of the words of that character:
+
+    "No words by him let fall, no syllable by him uttered, but has been
+    caught up and pondered, as no words except those of Holy Writ."
+
+But what of its future and how long will the Constitution wholly resist
+the washing of time and circumstance? Lord Macaulay once ventured the
+prediction that the Constitution would prove unworkable as soon as there
+were no longer large areas of undeveloped land and when the United
+States became a nation of great cities. That period of development has
+arrived. In 1880 only 15 per cent. of the American population lived in
+the cities and the remainder were still on the farms. To-day over 52 per
+cent, are crowded in one hundred great cities. Lord Macaulay added:
+
+    "I believe America's fate is only deferred by physical causes.
+    Institutions purely democratic will sooner or later destroy liberty
+    or civilization, or both.... The American Constitution is all sail
+    and no anchor."
+
+In this last commentary Lord Macaulay was clearly mistaken. As I have
+shown, the Constitution is not "purely democratic." It is amazing that
+so great a mind should have so little understood that more than any
+other Constitution, that of America imposes powerful restraints on
+democracy. The experience of a century and a quarter has shown that
+while the anchor may at times drag, yet it measurably holds the ship of
+state to its ancient moorings. The American Constitution still remains
+in its essential principles and still enjoys not only the confidence but
+the affection of the great and varied people whom it rules. To the
+latter this remarkable achievement must be attributed rather than to any
+inherent strength in parchment or red seals, for in a democracy the
+living soul of any Constitution must be such belief of the people in its
+wisdom and justice. If it should perish to-morrow, it would yet have
+enjoyed a life and growth of which any nation or age might be justly
+proud. Moreover, it could claim with truth, if it finally perished, that
+it had been subjected to conditions for which it was never intended and
+that some of its essential principles had been ignored.
+
+The Constitution is something more than a written formula of
+government--it is a great spirit. It is a high and noble assertion,
+and, indeed, vindication, of the morality of government. It "renders
+unto Caesar [the political state] the things that are Caesar's," but in
+safeguarding the fundamental moral rights of the people, it "renders
+unto God the things that are God's."
+
+In concluding, I cannot refrain from again reminding you that this
+consummate work of statecraft was the work of the English-speaking race,
+and that your people can therefore justly share in the pride which it
+awakens. It is not only one of the great achievements of that _gens
+aeterna_, but also one of the great monuments of human progress. It
+illustrates the possibilities of true democracy in its best estate. When
+the moral anarchy out of which it was born is called to mind, it can be
+truly said that while "sown in weakness, it was raised in power."
+
+To the succeeding ages, it will be a flaming beacon, and everywhere men,
+who are confronted with the acute problems of this complex age, can
+take encouragement from the fact that a small and weak people, when
+confronted with similar problems, had the strength and will to impose
+restraint upon themselves by peacefully proclaiming in the simple words
+of the noble preamble to the Constitution:
+
+    "We, the people of the United States, in order to form a more
+    perfect union, establish justice, ensure domestic tranquillity,
+    provide for the common defence, promote the general welfare, and
+    secure the blessings of liberty to ourselves and our posterity, do
+    ordain and establish this Constitution for the United States of
+    America."
+
+Note the words "ordain and establish." They imply perpetuity. They make
+no provision for the secession of any State, even if it deems itself
+aggrieved by federal action. And yet the right to secede was urged for
+many years, but Lincoln completed the work of Washington, Franklin,
+Madison and Hamilton by establishing that "a government for the people,
+by the people and of the people should not perish from the earth."
+
+
+
+
+_IV. The Revolt Against Authority_
+
+
+"Where there is no vision, the people perish: but he that keepeth the
+law, happy is he."
+
+PROVERBS xxix. 18.
+
+One of the most quoted--and also mis-quoted--proverbs of the wise
+Solomon says, as translated in the authorized version: "Where there is
+no vision, the people perish." What Solomon actually said was: "Where
+there is no vision, the people _cast off restraint_." The translator
+thus confused an effect with a cause. What was the vision to which the
+Wise Man referred? The rest of the proverb, which is rarely quoted,
+explains:
+
+"Where there is no vision, the people cast off restraint: _but he that
+keepeth the law, happy is he_."
+
+The vision, then, is the authority of law, and Solomon's warning is
+that to which the great and noble founder of Pennsylvania, William Penn,
+many centuries later gave utterance, when he said:
+
+"That government is free to the people under it, where the laws rule and
+the people are a party to those laws; and all the rest is tyranny,
+oligarchy and confusion."
+
+It is my present purpose to discuss the moral psychology of the present
+revolt against the spirit of authority. Too little consideration has
+been paid by the legal profession to questions of moral psychology.
+These have been left to metaphysicians and ecclesiastics, and yet--to
+paraphrase the saying of the Master--"the laws were made for man and not
+man for the laws," and if the science of the law ignores the study of
+human nature and attempts to conform man to the laws, rather than the
+laws to man, then its development is a very partial and imperfect one.
+
+Let me first be sure of my premises. Is there in this day and
+generation a spirit of lawlessness greater or different than that that
+has always characterized human society? Such spirit of revolt against
+authority has always existed, even when the penalty of death was visited
+upon nearly all offences against life and property. Blackstone tells us
+(Book IV, Chap. I) that in the eighteenth century it was a capital
+offence to cut down a cherry tree in an orchard--a drastic penalty which
+should increase our admiration for George Washington's courage and
+veracity.
+
+We are apt to see the past in a golden haze, which obscures our vision.
+Thus, we think of William Penn's "holy experiment" on the banks of the
+Delaware as the realization of Sir Thomas More's dream of Utopia; and
+yet Pennsylvania was somewhat intemperately called in 1698 "the greatest
+refuge for pirates and rogues in America," and Penn himself wrote, about
+that time, that he had heard of no place which was "more overrun with
+wickedness" than his City of Brotherly Love, where things were so
+"openly committed in defiance of law and virtue--facts so foul that I am
+forbid by common modesty to relate them."
+
+Conceding that lawlessness is not a novel phenomenon, is not the present
+time characterized by an exceptional revolt against the authority of
+law? The statistics of our criminal courts show in recent years an
+unprecedented growth in crimes. Thus, in the federal courts, pending
+criminal indictments have increased from 9503 in the year 1912 to over
+70,000 in the year 1921. While this abnormal increase is, in part, due
+to sumptuary legislation--for approximately 30,000 cases now pending
+arise under the prohibition statutes--yet, eliminating these, there yet
+remains an increase in nine years of over 400 per cent, in the
+comparatively narrow sphere of the federal criminal jurisdiction. I have
+been unable to get the data from the State Courts; but the growth of
+crimes can be measured by a few illustrative statistics. Thus, the
+losses from burglaries which have been repaid by casualty companies have
+grown in amount from $886,000 in 1914 to over $10,000,000 in 1920; and,
+in a like period, embezzlements have increased five-fold. It is
+notorious that the thefts from the mails and express companies and other
+carriers have grown to enormous proportions. The hold-up of railroad
+trains is now of frequent occurrence, and is not confined to the
+unsettled sections of the country. Not only in the United States, but
+even in Europe, such crimes of violence are of increasing frequency, and
+a recent dispatch from Berne, under date of August 7, 1921, stated that
+the famous International Expresses of Europe were now run under a
+military guard.
+
+The streets of our cities, once reasonably secure from crimes of
+violence, have now become the field of operations for the foot-pad and
+highwayman. The days of Dick Turpin and Jack Sheppard have returned,
+with this serious difference--that the Turpins and Sheppards of our day
+are not dependent upon the horse, but have the powerful automobile to
+facilitate their crimes and make sure their escape.
+
+Thus in Chicago alone, 5000 automobiles were stolen in a single year.
+Once murder was an infrequent and abnormal crime. To-day in our large
+cities it is of almost daily occurrence. In New York, in 1917, there
+were 236 murders and only 67 convictions; in 1918, 221, and 77
+convictions. In Chicago, in 1919, there were 336, and 44 convictions.
+
+When the crime wave was at its height a year ago, the police authorities
+in more than one American city confessed their impotence to impose
+effective restraints. Life and property had seemingly become almost as
+insecure as during the Middle Ages.[3]
+
+[Footnote 3: The reader will bear in mind that these words were spoken
+in August 1921. Unquestionably, the situation has greatly improved
+during the present year(1922).]
+
+As to the subtler and more insidious crimes against the political
+state, it is enough to say that graft has become a science in city,
+state and nation. Losses by such misapplication of public funds--piled
+Pelion on Ossa--no longer run in the millions but the hundreds of
+millions. Our city governments are, in many instances, foul cancers on
+the body politic; and for us to boast of having solved the problem of
+local self-government is as fatuous as for a strong man to exult in his
+health when his body is covered with running sores. It has been
+estimated that the annual profits from violations of the prohibition
+laws have reached $300,000,000. Men who thus violate these laws for
+sordid gain are not likely to obey other laws, and the respect for law
+among all classes steadily diminishes as our people become familiar
+with, and tolerant to, wholesale criminality. Whether the moral and
+economic results of Prohibition overbalance this rising wave of crime,
+time will tell.
+
+_In limine_, let us note the significant fact that this spirit of
+revolt against authority is not confined to the political state, and
+therefore its causes lie beyond that sphere of human action.
+
+Human life is governed by all manner of man-made laws--laws of art, of
+social intercourse, of literature, music, business--all evolved by
+custom and imposed by the collective will of society. Here we find the
+same revolt against tradition and authority.
+
+In music, its fundamental canons have been thrown aside and discord has
+been substituted for harmony as its ideal. Its culmination--jazz--is a
+musical crime. If the forms of dancing and music are symptomatic of an
+age, what shall be said of the universal craze to indulge in crude and
+clumsy dancing to the vile discords of so-called "jazz" music? The cry
+of the time is:
+
+    "On with the dance, let joy be" unrefined.
+
+In the plastic arts, the laws of form and the criteria of beauty have
+been swept aside by the futurists, cubists, vorticists, tactilists, and
+other aesthetic Bolsheviki.
+
+In poetry, where beauty of rhythm, melody of sound and nobility of
+thought were once regarded as the true tests, we now have in freak forms
+of poetry the exaltation of the grotesque and brutal. Hundreds of poets
+are feebly echoing the "barbaric yawp" of Walt Whitman, without the
+redeeming merit of his occasional sublimity of thought.
+
+In commerce, the revolt is against the purity of standards and the
+integrity of business morals. Who can question that this is
+pre-eminently the age of the sham and the counterfeit? Science is
+prostituted to deceive the public by cloaking the increasing
+deterioration in quality of merchandise. The blatant medium of
+advertising has become so mendacious as to defeat its own purpose.
+
+In the recent deflation in commodity values, there was widespread
+"welching" among business men who had theretofore been classed as
+reputable. Of course, I recognize that a far greater number kept their
+contracts, even when it brought them to the verge of ruin. But when in
+the history of American business was there such a volume of broken faith
+as in the drastic deflation of 1920?
+
+In the greater sphere of social life, we find the same revolt against
+the institutions which have the sanction of the past. Social laws, which
+mark the decent restraints of print, speech and dress, have in recent
+decades been increasingly disregarded. The very foundations of the great
+and primitive institutions of mankind--like the family, the Church, and
+the State--have been shaken. Nature itself is defied. Thus, the
+fundamental difference of sex is disregarded by social and political
+movements which ignore the permanent differentiation of social function
+ordained by Nature.
+
+All these are but illustrations of the general revolt against the
+authority of the past--a revolt that can be measured by the change in
+the fundamental presumption of men with respect to the value of human
+experience. In all former ages, all that was in the past was
+presumptively true, and the burden was upon him who sought to change it.
+To-day, the human mind apparently regards the lessons of the past as
+presumptively false--and the burden is upon him who seeks to invoke
+them.
+
+Lest I be accused of undue pessimism, let me cite as a witness one who,
+of all men, is probably best equipped to express an opinion upon the
+moral state of the world. I refer to the venerable head of that
+religious organization[4] which, with its trained representatives in
+every part of the world, is probably better informed as to its spiritual
+state than any other organization.
+
+[Footnote 4: Reference is to the late Pope Benedict.]
+
+Speaking last Christmas Eve, in an address to the College of Cardinals,
+the venerable Pontiff gave expression to an estimate of present
+conditions which should have attracted far greater attention than it
+apparently did.
+
+The Pope said that five plagues were now afflicting humanity.
+
+The first was the unprecedented challenge to authority.
+
+The second, an equally unprecedented hatred between man and man.
+
+The third was the abnormal aversion to work.
+
+The fourth, the excessive thirst for pleasure as the great aim of life.
+
+The fifth, a gross materialism which denied the reality of the spiritual
+in human life.
+
+The accuracy of this indictment will commend itself to men who like
+myself are not of Pope Benedict's communion.
+
+I trust that I have already shown that the challenge to authority is
+universal and is not confined to that of the political state. Even in
+the narrower confine of the latter, the fires of revolution are either
+violently burning, or, at least, smouldering. Two of the oldest empires
+in the world, which, together, have more than half of its population
+(China and Russia) are in a welter of anarchy; while many lesser nations
+are in a stage of submerged revolt. If the revolt were confined to
+autocratic governments, we might see in it merely a reaction against
+tyranny; but even in the most stable of democracies and among the most
+enlightened peoples, the underground rumblings of revolution may be
+heard.
+
+The Government of Italy has been preserved from overthrow, not alone by
+its constituted authorities, but by a band of resolute men, called the
+"fascisti," who have taken the law into their own hands, as did the
+vigilance committees in western mining camps, to put down worse
+disorders.
+
+Even England, the mother of democracies, and the most stable of all
+Governments in the maintenance of law, has been shaken to its very
+foundations in the last three years, when powerful groups of men
+attempted to seize the State by the throat and compel submission to
+their demands by threatening to starve the community. This would be
+serious enough if it were only the world-old struggle between capital
+and labour and had only involved the conditions of manual toil. But the
+insurrection against the political state in England was more political
+than it was economic. It marked, on the part of millions of men, a
+portentous decay of belief in representative government and its chosen
+organ--the ballot box. Great and powerful groups had suddenly
+discovered--and it may be the most portentous political discovery of the
+twentieth century--that the power involved in their control over the
+necessaries of life, as compared with the power of the voting franchise,
+was as a forty-two centimetre cannon to the bow and arrow. The end
+sought to be attained, namely the nationalization of the basic
+industries, and even the control of the foreign policy of Great Britain,
+vindicated the truth of the British Prime Minister's statement that
+these great strikes involved something more than a mere struggle over
+the conditions of labour, and that they were essentially seditious
+attempts against the life of the State.[5]
+
+[Footnote 5: I am here speaking of the conditions of 1920. I appreciate
+the great improvement, which seems to me to justify the Lincoln-like
+patience of Lloyd George.]
+
+Nor were they altogether unsuccessful; for, when the armies of Lenin and
+Trotsky were at the gates of Warsaw, in the summer of 1920, the attempts
+of the Governments of England and Belgium to afford assistance to the
+embattled Poles were paralysed by the labour groups of both countries,
+who threatened a general strike if those two nations joined with France
+in aiding Poland to resist a possibly greater menace to Western
+civilization than has occurred since Attila and his Huns stood on the
+banks of the Marne.
+
+Of greater significance to the welfare of civilization is the complete
+subversion during the world war of nearly all the international laws
+which had been slowly built up in a thousand years. These principles, as
+codified by the two Hague Conventions, were immediately swept aside in
+the fierce struggle for existence, and civilized man, with his liquid
+fire and poison gas and his deliberate; attacks upon undefended cities
+and their women and children, waged war with the unrelenting ferocity of
+primitive times.
+
+Surely, this fierce war of extermination, which caused the loss of three
+hundred billion dollars in property and thirty millions of human lives,
+did mark for the time being the "twilight of civilization." The hands on
+the dial of time had been put back--temporarily, let us hope and pray--a
+thousand years.
+
+Nor will many question the accuracy of the second count in Pope
+Benedict's indictment. The war to end war only ended in unprecedented
+hatred between nation and nation, class and class, and man and man.
+Victors and vanquished are involved in a common ruin. And if in this
+deluge of blood, which has submerged the world, there is a Mount Ararat,
+upon which the ark of a truer and better peace can find refuge, it has
+not yet appeared above the troubled surface of the waters.
+
+Still less can one question the closely related third and fourth counts
+in Pope Benedict's indictment, namely the unprecedented aversion to
+work, when work is most needed to reconstruct the foundations of
+prosperity, or the excessive thirst for pleasure which preceded,
+accompanied, and now has followed the most terrible tragedy in the
+annals of mankind. The true spirit of work seems to have vanished from
+millions of men; that spirit of which Shakespeare made his Orlando
+speak when he said of his true servant, Adam:
+
+  "O good old man! how well in thee appears
+  The constant service of the antique world.
+  When service sweat for duty, not for meed!"
+
+The _moral_ of our industrial civilization has been shattered. Work for
+work's sake, as the most glorious privilege of human faculties, has
+gone, both as an ideal and as a potent spirit. The conception of work as
+a degrading servitude, to be done with reluctance and grudging
+inefficiency, seems to be the ideal of millions of men of all classes
+and in all countries.
+
+The spirit of work is of more than sentimental importance. It may be
+said of it, as Hamlet says of death: "The readiness is all." All of us
+are conscious of the fact that, given a love of work, and the capacity
+for it seems almost illimitable--as witness Napoleon, with his
+thousand-man power, or Shakespeare, who in twenty years could write
+more than twenty masterpieces.
+
+On the other hand, given an aversion to work, and the less a man does
+the less he wants to do, or is seemingly capable of doing.
+
+The great evil of the world to-day is this aversion to work. As the
+mechanical era diminished the element of physical exertion in work, we
+would have supposed that man would have sought expression for his
+physical faculties in other ways. On the contrary, the whole history of
+the mechanical era is a persistent struggle for more pay and less work,
+and to-day it has culminated in world-wide ruin; for there is not a
+nation in civilization which is not now in the throes of economic
+distress, and many of them are on the verge of ruin. In my judgment, the
+economic catastrophe of 1921 is far greater than the politico-military
+catastrophe of 1914.
+
+The results of these two tendencies, measured in the statistics of
+productive industry, are literally appalling.
+
+Thus, in 1920, Italy, according to statistics of her Minister of
+Labour, lost 55,000,000 days of work because of strikes alone. From July
+to September, many great factories were in the hands of revolutionary
+communists. A full third of these strikes had for their end political
+and not economic purposes.
+
+In Germany, the progressive revolt of labour against work is thus
+measured by competent authority: There were lost in strikes in 1917,
+900,000 working days; in 1918, 4,900,000, and, in 1919, 46,600,000.
+
+Even in our own favoured land, the same phenomena are observable. In the
+State of New York alone for 1920, there was a loss due to strikes of
+over 10,000,000 working days.
+
+In all countries the losses by such cessations from labour are little as
+compared with those due to the spirit which in England is called
+"ca'-canny" or the shirking of performance of work, and of sabotage,
+which means the deliberate destruction of machinery in operation.
+Everywhere the phenomenon has been observed that, with the highest wages
+known in the history of modern times, there has been an unmistakable
+lessening of efficiency, and that with an increase in the number of
+workers, there has been a decrease in output. Thus, the transportation
+companies in the United States have seriously made a claim against the
+United States Government for damages to their roads, amounting to
+$750,000,000, claimed to be due to the inefficiency of labour during the
+period of governmental operation.
+
+Accompanying this indisposition to work efficiently has been a mad
+desire for pleasure, such as, if it existed in like measure in preceding
+ages, has not been seen within the memory of living man. Man has danced
+upon the verge of a social abyss, and, as previously suggested, the
+dancing has, both in form and in accompanying music, lost its former
+grace and reverted to the primitive forms of crude vulgarity.
+
+which gives the spectators the maximum of emotional expression with the
+minimum of mental effort, had not been eclipsed by the splendour of a
+Dempsey or a Carpentier.
+
+Of the last count in Pope Benedict's indictment, I shall say but little.
+It is more appropriate for the members of that great and noble
+profession which is more intimately concerned with the spiritual advance
+of mankind. It is enough to say that, while the Church as an institution
+continues to exist, the belief in the supernatural and even in the
+spiritual has been supplanted in the souls of millions of men by a gross
+and debasing materialism.
+
+If my reader agrees with me in my premises then we are not likely to
+disagree in the conclusion that the causes of these grave symptoms are
+not ephemeral or superficial; but must have their origin in some
+deep-seated and world-wide change in human society. If there is to be a
+remedy, we must first diagnose this malady of the human soul.
+
+For example, let us not "lay the flattering unction to our souls" that
+this spirit is solely the reaction of the great war.
+
+The present weariness and lassitude of human spirit and the
+disappointment and disillusion as to the aftermath of the harvest of
+blood, may have aggravated, but they could not cause the symptoms of
+which I speak; for the very obvious reason that all these symptoms were
+in existence and apparent to a few discerning men for decades before the
+war. Indeed, it is possible that the world war, far from causing the
+_malaise_ of the age, was, in itself, but one of its many symptoms.
+
+Undoubtedly, there are many contributing causes which have swollen the
+turbid tide of this world-wide revolution against the spirit of
+authority.
+
+Thus, the multiplicity of laws does not tend to develop a law-abiding
+spirit. This fact has often been noted. Thus Napoleon, on the eve of the
+18th Brumaire, complained that France, with a thousand folios of law,
+was a lawless nation. Unquestionably, the political state suffers in
+authority by the abuse of legislation, and especially by the appeal to
+law to curb evils that are best left to individual conscience.
+
+In this age of democracy, the average individual is too apt to recognize
+two constitutions--one, the constitution of the State, and the second,
+an unwritten constitution, to him of higher authority, under which he
+believes that no law is obligatory which he regards as in excess of the
+true powers of government. Of this latter spirit, the widespread
+violation of the prohibition law is a familiar illustration.
+
+A race of individualists obey reluctantly, when they obey at all, any
+laws which they regard as unreasonable or vexatious. Indeed, they are
+increasingly opposed to any law, which affects their selfish interests.
+Thus many good women are involuntary smugglers. They deny the authority
+of the state to impose a tax upon a Paquin gown. The law's delays and
+laxity in administration breed a spirit of contempt, and too often
+invite men to take the law into their own hands. These causes are so
+familiar that their statement is a commonplace.
+
+Proceeding to deeper and less recognized causes, some would attribute
+this spirit of lawlessness to the rampant individualism, which began in
+the eighteenth century, and which has steadily and naturally grown with
+the advance of democratic institutions. Undoubtedly, the excessive
+emphasis upon the rights of man, which marked the political upheaval of
+the close of the eighteenth and the beginning of the nineteenth century,
+has contributed to this malady of the age. Men talked, and still talk,
+loudly of their rights, but too rarely of their duties. And yet if we
+were to attribute the malady merely to excessive individualism, we would
+again err in mistaking a symptom for a cause.
+
+To diagnose truly this malady we must look to some cause that is
+coterminous in time with the disease itself and which has been operative
+throughout civilization. We must seek some widespread change in social
+conditions, for man's essential nature has changed but little, and the
+change must, therefore, be of environment.
+
+I know of but one such change that is sufficiently widespread and
+deep-seated to account adequately for this malady of our time.
+
+Beginning with the close of the eighteenth century, and continuing
+throughout the nineteenth, a prodigious transformation has taken place
+in the environment of man, which has done more to revolutionize the
+conditions of human life than all the changes that had taken place in
+the 500,000 preceding years which science has attributed to man's life
+on the planet. Up to the period of Watt's discovery of steam vapour as a
+motive power, these conditions, so far as the principal facilities of
+life, were substantially those of the civilization which developed
+eighty centuries ago on the banks of the Nile and later on the
+Euphrates. Man had indeed increased his conquest over Nature in later
+centuries by a few mechanical inventions, such as gunpowder, telescope,
+magnetic needle, printing-press, spinning jenny, and hand-loom, but the
+characteristic of all those inventions, with the exception of gunpowder,
+was that they still remained a subordinate auxiliary to the physical
+strength and mental skill of man. In other words, man still dominated
+the machine, and there was still full play for his physical and mental
+faculties. Moreover, all the inventions of preceding ages, from the
+first fashioning of the flint to the spinning-wheel and the hand-lever
+press, were all conquests of the tangible and visible forces of Nature.
+
+With Watt's utilization of steam vapour as a motive power, man suddenly
+passed into a new and portentous chapter of his varied history.
+Thenceforth, he was to multiply his powers a thousandfold by the
+utilization of the invisible powers of Nature--such as vapour and
+electricity. This prodigious change in his powers, and therefore his
+environment, has proceeded with ever-accelerating speed.
+
+Man has suddenly become the superman. Like the giants of the ancient
+fable, he has stormed the very ramparts of Divine power, or, like
+Prometheus, he has stolen fire of omnipotent forces from Heaven itself
+for his use. His voice can now reach from the Atlantic to the Pacific,
+and, taking wing in his aeroplane, he can fly in one swift flight from
+Nova Scotia to England, or he can leave Lausanne and, resting upon the
+icy summit of Mont Blanc--thus, like "the herald, Mercury, new-lighted
+on a heaven-kissing hill"--he can again plunge into the void, and thus
+outfly the eagles themselves.
+
+In thus acquiring from the forces of Nature almost illimitable power, he
+has minimized the necessity for his own physical exertion or even
+mental skill. The machine now not only acts for him, but too often
+_thinks_ for him.
+
+Is it surprising that so portentous a change should have fevered his
+brain and disturbed his mental equilibrium? A new ideal, which he
+proudly called "progress," obsessed him, the ideal of quantity and not
+quality. His practical religion became that of acceleration and
+facilitation--to do things more quickly and easily--and thus to minimize
+exertion became his great objective. Less and less he relied upon the
+initiative of his own brain and muscle, and more and more he put his
+faith in the power of machinery to relieve him of labour. The evil of
+our age is that its values are all false. It overrates speed, it
+underrates sureness; it overrates the new, it underrates the old; it
+overrates automatic efficiency, it underrates individual craftsmanship;
+it overrates rights, it underrates duties; it overrates political
+institutions, it underrates individual responsibility. We glory in the
+fact that we can talk a thousand miles, but we ignore the greater
+question, whether when we thus out-do Stentor, we have anything worth
+saying. We have now made the serene spaces of the upper Heavens our
+media to transmit market reports and sporting news, second-rate music
+and worse oratory and in the meantime the great masters of thought,
+Homer and Shakespeare, Bach and Beethoven remain unbidden on our library
+shelves. What a sordid Vanity Fair is our modern Civilization!
+
+This incalculable multiplication of power has intoxicated man. The lust
+has obsessed him, without regard to whether it be constructive or
+destructive. Quantity, not quality, becomes the great objective. Man
+consumes the treasures of the earth faster than he produces them,
+deforesting its surface and disembowelling its hidden wealth. As he
+feverishly multiplied the things he desired, even more feverishly he
+multiplied his wants.
+
+To gain these, man sought the congested centres of human life. While
+the world, as a whole, is not over-populated, the leading countries of
+civilization were subjected to this tremendous pressure. Europe, which,
+at the beginning of the nineteenth century, barely numbered 100,000,000
+people, suddenly grew nearly five-fold. Millions left the farms to
+gather into the cities to exploit their new and seemingly easy conquest
+over Nature.
+
+In the United States, as recently as 1880, only 15 per cent. of the
+people were crowded in the cities, 85 per cent. remained upon the farms
+and still followed that occupation, which, of all occupations, still
+preserves, in its integrity, the dominance of human labour over the
+machine. To-day, 52 per cent. of the population is in the cities, and
+with many of them existence is both feverish and artificial. While they
+have employment, many of them do not themselves work, but spend their
+lives in watching machines work.
+
+The result has been a minute subdivision of labour that has denied to
+many workers the true significance and physical benefit of labour.
+
+The direct results of this excessive tendency to specialization, whereby
+not only the work but the worker becomes divided into mere fragments,
+are threefold. Hobson, in his work on John Ruskin, thus classifies them.
+In the first place, _narrowness_, due to the confinement to a single
+action in which the elements of human skill or strength are largely
+eliminated; secondly, _monotony_, in the assimilation of man to a
+machine, whereby seemingly the machine dominates man and not man the
+machine, and, thirdly, _irrationality_, in that work became dissociated
+in the mind of the worker with any complete or satisfying achievement.
+The worker does not see the fruit of his travail, and cannot therefore
+be truly satisfied. To spend one's life in opening a valve to make a
+part of a pin is, as Ruskin pointed out, demoralizing in its
+tendencies. The clerk who only operates an adding machine has little
+opportunity for self-expression.
+
+Thus, millions of men have lost both the opportunity for real physical
+exertion, the incentive to work in the joyous competition of skill, and
+finally the reward of work in the sense of achievement.
+
+More serious than this, however, has been the destructive effort of
+quantity, the great object of the mechanical age, at the expense of
+quality.
+
+Take, for example, the printing-press: No one can question the immense
+advantages which have flowed from the increased facility for
+transmitting ideas. But may it not be true that the thousandfold
+increase in such transmission by the rotary press has also tended to
+muddy the current thought of the time? True it is that the
+printing-press has piled up great treasures of human knowledge which
+make this age the richest in accessible information. I am not speaking
+of knowledge, but rather of the current thought of the living
+generation.
+
+I gravely question whether it has the same clarity as the brain of the
+generation which fashioned the Constitution of the United States. Our
+fathers could not talk over the telephone for three thousand miles, but
+have we surpassed them in thoughts of enduring value? Washington and
+Franklin could not travel sixty miles an hour in a railroad train, or
+twice that speed in an aeroplane, but does it follow that they did not
+travel to as good purpose as we, who scurry to and fro like the ants in
+a disordered ant-heap?
+
+Unquestionably, man of to-day has a thousand ideas suggested to him by
+the newspaper and the library where our ancestors had one; but have we
+the same spirit of calm inquiry and do we co-ordinate the facts we know
+as wisely as our ancestors did?
+
+Athens in the days of Pericles had but thirty thousand people and few
+mechanical inventions; but she produced philosophers, poets and artists,
+whose work after more than twenty centuries still remain the despair of
+the would-be imitators.
+
+Shakespeare had a theatre with the ground as its floor and the sky as
+its ceiling; but New York, which has fifty theatres and annually spends
+$100,000,000 in the box offices of its varied amusement resorts, has
+rarely in two centuries produced a play that has lived.
+
+To-day, man has a cinematographic brain. A thousand images are impressed
+daily upon the screen of his consciousness, but they are as fleeting as
+moving pictures in a cinema theatre. The American Press prints every
+year over 29,000,000,000 issues. No one can question its educational
+possibilities, for the best of all colleges is potentially the
+University of Gutenberg. If it printed only the truth, its value would
+be infinite; but who can say in what proportions of this vast volume of
+printed matter is the true and the false? The framers of the
+Constitution had few books and fewer newspapers. Their thoughts were few
+and simple, but what they lacked in quantity they made up in unsurpassed
+quality.
+
+Before the beginning of the present mechanical age, the current of
+living thought could be likened to a mountain stream, which though
+confined within narrow banks yet had waters of transparent clearness.
+May not the current thought of our time be compared with the mighty
+Mississippi in the period of a spring freshet? Its banks are wide and
+its current is swift, but the turbid stream that flows onward is one of
+muddy swirls and eddies and overflows its banks to their destruction.
+
+The great indictment, however, of the present age of mechanical power is
+that it has largely destroyed the spirit of work. The great enigma which
+it propounds to us, and which, like the riddle of the Sphinx, we will
+solve or be destroyed, is this:
+
+_Has the increase in the potential of human power, through
+thermodynamics, been accompanied by a corresponding increase in the
+potential of human character?_
+
+To this life and death question, a great French philosopher, Le Bon,
+writing in 1910, replied that the one unmistakable symptom of human life
+was "the increasing deterioration in human character," and a great
+physicist has described the symptom as "the progressive enfeeblement of
+the human will."
+
+In a famous book, _Degeneration_, written at the close of the nineteenth
+century, Max Nordau, as a pathologist, explains this tendency by arguing
+that our complex civilization has placed too great a strain upon the
+limited nervous organization of man.
+
+A great financier, the elder J.P. Morgan, once said of an existing
+financial condition that it was suffering from "undigested securities,"
+and, paraphrasing him, is it not possible that man is suffering from
+undigested achievements and that his salvation must lie in adaptation to
+a new environment, which, measured by any standard known to science, is
+a thousandfold greater in this year of grace than it was at the
+beginning of the nineteenth century?
+
+No one would be mad enough to urge such a retrogression as the
+abandonment of labour-saving machinery would involve. Indeed, it would
+be impossible; for, in speaking of its evils, I freely recognize that
+not only would civilization perish without its beneficent aid, but that
+every step forward in the history of man has been coincident with, and
+in large part attributable to, a new mechanical invention.
+
+But suppose the development of labour-saving machinery should reach a
+stage where all human labour was eliminated, what would be the effect on
+man? The answer is contained in an experiment which Sir John Lubbock
+made with a tribe of ants. Originally the most voracious and militant of
+their species, yet when denied the opportunity for exercise and freed
+from the necessity of foraging for their food, in three generations they
+became anaemic and perished.
+
+Take from man the opportunity of work and the sense of pride in
+achievement and you have taken from him the very life of his existence.
+Robert Burns could sing as he drove his ploughshare through the fields
+of Ayr. To-day millions who simply watch an automatic infallible
+machine, which requires neither strength nor skill, do not sing at their
+work but too many curse the fate, which has chained them, like Ixion, to
+a soulless machine.
+
+The evil is even greater.
+
+The specialization of our modern mechanical civilization has caused a
+submergence of the individual into the group or class. Man is fast
+ceasing to be the unit of human society. Self-governing groups are
+becoming the new units. This is true of all classes of men, the employer
+as well as the employee. The true justification for the American
+anti-monopoly statutes, including the Sherman anti-trust law, lies not
+so much in the realm of economics as in that of morals. With the
+submergence of the individual, whether he be capitalist or wage-earner,
+into a group, there has followed the dissipation of moral
+responsibility. A mass morality has been substituted for individual
+morality, and unfortunately, group morality generally intensifies the
+vices more than the virtues of man.
+
+Possibly, the greatest result of the mechanical age is this spirit of
+organization.
+
+Its merits are manifold and do not require statement; but they have
+blinded us to the demerits of excessive organization.
+
+We are now beginning to see--slowly, but surely--that a faculty of
+organization which, as such, submerged the spirit of individualism, is
+not an unmixed good.
+
+Indeed, the moral lesson of the tragedy of Germany is the demoralizing
+influence of organization carried to the _n_th power. No nation was ever
+more highly organized than this modern State. Physically, intellectually
+and spiritually it had become a highly developed machine. Its dominating
+mechanical spirit so submerged the individual that, in 1914, the paradox
+was observed of an enlightened nation that was seemingly destitute of a
+conscience.
+
+What was true of Germany, however, was true--although in lesser
+degree--of all civilized nations. In all of them, the individual had
+been submerged in group formations, and the effect upon the character of
+man has been destructive of his nobler self.
+
+This may explain the paradox of so-called "progress." It may be likened
+to a great wheel, which, from the increasing domination of mechanical
+forces, developed an ever-accelerating speed, until, by centrifugal
+action, it went off its bearings in 1914 and caused an unprecedented
+catastrophe. As man slowly pulls himself out of that gigantic wreck and
+recovers consciousness, he begins to realize that speed is not
+necessarily progress.
+
+Of all this, the nineteenth century, in its exultant pride in its
+conquest of the invisible forces, was almost blind. It not only accepted
+progress as an unmistakable fact--mistaking, however, acceleration and
+facilitation for progress--but in its mad folly believed in an immutable
+law of progress which, working with the blind forces of machinery, would
+propel man forward.
+
+A few men, however, standing on the mountain ranges of human
+observation, saw the future more clearly than did the mass. Emerson,
+Carlyle, Ruskin, Samuel Butler, and Max Nordau, in the nineteenth
+century, and, in our time, Ferrero, all pointed out the inevitable
+dangers of the excessive mechanization of human society. The prophecies
+were unhappily as little heeded as those of Cassandra.
+
+One can see the tragedy of the time, as a few saw it, in comparing the
+first _Locksley Hall_ of Alfred Tennyson, written in 1827, with its
+abiding faith in the "increasing purpose of the ages" and its roseate
+prophecies of the golden age, when the "war-drum would throb no longer
+and the battle flags be furled in the Parliament of Man and the
+Federation of the World," and the later _Locksley Hall_, written sixty
+years later, when the great spiritual poet of our time gave utterance to
+the dark pessimism which flooded his soul:
+
+  "Gone the cry of 'Forward, Forward,' lost within a growing gloom;
+  Lost, or only heard in silence from the silence of a tomb.
+
+  Half the marvels of my morning, triumphs over time and space,
+  Staled by frequence, shrunk by usage, into commonest commonplace!
+
+  Evolution ever climbing after some ideal good,
+  And Reversion ever dragging Evolution in the mud.
+
+  Is it well that while we range with Science, glorying in the Time,
+  City children soak and blacken soul and sense in city slime?"
+
+Am I unduly pessimistic? I fear that this is the case with most men who,
+like Dante, have crossed their fiftieth year and find themselves in a
+"dark and sombre wood."
+
+My reader will probably subject me to the additional reproach that I
+suggest no remedy.
+
+There are many palliatives for the evils which I have discussed. To
+rekindle in men the love of work for work's sake and the spirit of
+discipline, which the lost sense of human solidarity once inspired,
+would do much to solve the problem, for work is the greatest moral force
+in the world. But I must frankly add that I have neither the time nor
+the qualifications to discuss the solution of this grave problem.
+
+If we of this generation can only recognize that the evil exists, then
+the situation is not past remedy; for man has never yet found himself in
+a blind alley of negation. He is still "master of his soul and captain
+of his fate," and, to me, the most encouraging sign of the times is the
+persistent evidence of contemporary literature that thoughtful men now
+recognize that much of our boasted progress was as unreal as a rainbow.
+While the temper of the times seems for the moment pessimistic, it
+merely marks the recognition of man of an abyss whose existence he
+barely suspected but over which his indomitable courage will yet carry
+him.
+
+I have faith in the inextinguishable spark of the Divine, which is in
+the human soul and which our complex mechanical civilization has not
+extinguished. Of this, the world war was in itself a proof. All the
+horrible resources of mechanics and chemistry were utilized to coerce
+the human soul, and all proved ineffectual. Never did men rise to
+greater heights of self-sacrifice or show a greater fidelity "even unto
+death." Millions went to their graves, as to their beds, for an ideal;
+and when that is possible, this Pandora's box of modern civilization,
+which contained all imaginable evils, as well as benefits, also leaves
+hope behind.
+
+I am reminded of a remark that the great Roumanian statesman, Taku
+Jonescu, made during the Peace Conference at Paris. When asked his views
+as to the future of civilization, he replied: "Judged by the light of
+reason there is but little hope, but I have faith in man's
+inextinguishable impulse to live."
+
+Happily, that cannot be affected by any change in man's environment! For
+even when the cave-man retreated from the advance of the polar cap,
+which once covered Europe with Arctic desolation, he not only defied the
+elements but showed even then the love of the sublime by beautifying the
+walls of his icy prison with those mural decorations which were the
+beginning of art.
+
+Assuredly, the man of to-day, with the rich heritage of countless ages,
+can do no less. He has but to diagnose the evil and he will then, in
+some way, meet it.
+
+But what can man-made law do in this warfare against the blind forces of
+Nature?
+
+It is easy to exaggerate the value of all political institutions; for
+they are generally on the surface of human life and do not reach down to
+the deep under-currents of human nature. But the law can do something to
+protect the soul of man from destruction by the soulless machine.
+
+It can defend the spirit of individualism. It must champion the human
+soul in its God-given right to exercise freely the faculties of mind and
+body. We must defend the right to work against those who would either
+destroy or degrade it. We must defend the right of every man, not only
+to join with others in protecting his interests, whether he is a brain
+worker or a hand worker--for without the right of combination the
+individual would often be the victim of giant forces--but we must
+vindicate the equal right of an individual, if he so wills, to depend
+upon his own strength.
+
+The tendency of group morality to standardize man--and thus reduce all
+men to the dead level of an average mediocrity--is one that the law
+should combat. Its protection should be given to those of superior skill
+and diligence, who ask the due rewards of such superiority. Any other
+course, to use the fine phrase of Thomas Jefferson in his first
+inaugural, is to "take from the mouth of labour the bread it has
+earned."
+
+Of this spirit one of the noblest expressions is the Constitution of the
+United States. That Magna Charta has not wholly escaped the destructive
+tendencies of a mechanical age. It was framed at the very end of the
+pastoral-agricultural age and at a time when the spirit of
+individualism was in full flower. The hardy pioneers who, with their
+axes, made straight the pathway of an advancing civilization, were
+sturdy men who need not be undervalued to us of the mechanical age. The
+"prairie schooner," which met the elemental forces of Nature with the
+proud challenge: "Pike's Peak or bust," produced as fine a type of
+manhood as the age which travels either in Mr. Ford's "fliver" or the
+more luxurious Rolls-Royce.
+
+The Constitution was framed in the period that marked the passing of the
+primitive age and the dawn of the day of the machine. Watt had recently
+discovered the potency of steam vapour as a motive power; but its only
+use at first was for pumping water out of the mines.
+
+When the framers of the Constitution met in high convention in
+Philadelphia in the summer of 1787, a Connecticut Yankee, John Fitch,
+was then also working in Philadelphia upon his steamboat; but twenty
+years were to pass before the prow of the _Clermont_ was to part the
+waters of the Hudson, and nearly a half century before transportation
+was to be revolutionized by the utilization of Watt's invention in the
+locomotive. Of the wonders of the steamship, the railroad, the
+telegraphic cable, the wireless, the gasoline engine, and a thousand
+other mechanical miracles, the framers of the American Constitution did
+not even dream.
+
+The greatest and noblest purpose of the Constitution was not alone to
+hold in nicest equipose the relative powers of the nation and the
+States, but also to maintain in the scales of justice a true equilibrium
+between the rights of government and the rights of an individual. It did
+not believe that the State was omnipotent or infallible, and yet it
+proclaimed its authority within wise and just limits. It defended the
+integrity of the human soul.
+
+In other governments, these fundamental decencies of liberty rest upon
+the conscience of the legislature. Under the American Constitution,
+they are part of the fundamental law, and, as such, enforceable by
+judges sworn to defend the integrity of the individual as fully as the
+integrity of the State.
+
+When did a nobler "vision" inspire men in the political annals of
+mankind? Without that vision to restrain each succeeding generation of
+Americans from the tempting excesses of political power, the American
+Commonwealth, with its great heterogeneous democracy, would probably
+perish.
+
+That vision still remains as an ideal with the American people and still
+leads them to ever-higher achievements, for in all the mad changes of a
+frenzied hour, they have not yet lost faith in or love for the
+Constitution of the Fathers! That vision will remain with them as long,
+and no longer, as there is in their hearts a conscious and willing
+acquiescence in its wisdom and justice. Obviously, it can have no
+inherent vigour to perpetuate itself. If it ceases to be of the spirit
+of the people, then the yellow parchment whereon it is inscribed can
+avail nothing. When that parchment was last taken from the safe in the
+State Department, the ink in which it had been engrossed nearly 134
+years ago was found to have faded. All who believe in constitutional
+government must hope that this is not a portentous symbol. The American
+people must write the compact, not with ink upon parchment, but with
+"letters of living light"--to use Webster's phrase--upon their hearts.
+
+Again the solemn warning of the wise man of old recurs to us:
+
+
+"Where there is no vision, the people perish; but he that keepeth the
+law, happy is he."
+
+
+
+
+
+End of the Project Gutenberg EBook of The Constitution of the United States
+by James M. Beck
+
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+Project Gutenberg's The Constitution of the United States, by James M. Beck
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: The Constitution of the United States
+       A Brief Study of the Genesis, Formulation and Political Philosophy of the Constitution
+
+Author: James M. Beck
+
+Release Date: November 12, 2003 [EBook #10065]
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THIS PROJECT GUTENBERG EBOOK THE CONSTITUTION ***
+
+
+
+
+Produced by Afra Ullah, Dave Morgan and PG Distributed Proofreaders
+
+
+
+
+[Illustration: _Photo Henry Dixon & Son_ _From the Portrait painted by
+Harrington Mann for Gray's Inn_]
+
+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.
+
+One of England's greatest Prime Ministers, William Pitt, shortly after
+the adoption of the Constitution, prophetically said that it would be
+the admiration of the future ages and the pattern for future
+constitution building. Time has verified his prediction, for
+constitution making has been, since the American Constitution was
+adopted, a continuous industry. The American Constitution has been the
+classic model for the federated State. Lieber estimated that three
+hundred and fifty constitutions were made in the first sixty years of
+the nineteenth century, and, in the constituent States of the American
+Union, one hundred and three new Constitutions were promulgated in the
+first century of the United States.
+
+"Have you a copy of the French Constitution?" was asked of a bookseller
+during the second French Empire, and the characteristically witty Gallic
+reply was: "We do not deal in periodical literature."
+
+Constitutions, as governmental panaceas, have come and gone; but it can
+be said of the American Constitution, paraphrasing the noble tribute of
+Dr. Johnson to the immortal fame of Shakespeare, that the stream of
+time, which has washed away the dissoluble fabric of many other paper
+constitutions has left almost untouched its adamantine strength.
+Excepting the first ten amendments, which were virtually a part of the
+original charter, only nine others have been adopted in more than one
+hundred and thirty years.
+
+A constitution, while primarily for the distribution of governmental
+powers, is, in its last analysis, a formal expression of adherence to
+that which in modern times has been called the higher law, and which in
+ancient times was called natural law. The jurisprudence of every nation
+has, with more or less clearness, recognized the existence of certain
+primal and fundamental laws which are superior to the laws, statutes, or
+conventions of living generations. The original use of the term was to
+import the superiority of the Imperial edict to the laws of the Comitia.
+All nations have recognized this higher law to a greater or less extent.
+If we turn to the writings of the most intellectual race in ancient
+time and possibly in recorded history--the Greeks--we shall see the
+higher law vindicated with incomparable power in the moral philosophy of
+its three greatest dramatists, Aeschylus, Sophocles, and Euripides. How
+was it better expressed than by Antigone when she was asked whether she
+had transgressed the laws of the state and replied:
+
+    "Yes, for that law was not from Zeus, nor did Justice, dweller with
+    the gods below, establish it among men; nor deemed I that thy
+    decree--mere mortal that thou art--could override those unwritten
+    and unfailing mandates, which are not of to-day or yesterday, but
+    ever live and no one knows their birthtide."
+
+Five centuries later the greatest of the Roman lawyers and orators,
+Cicero, spoke in the same terms of a higher law, "which was never
+written and which we are never taught, which we never team by reading,
+but which was drawn by nature herself."
+
+The Roman jurists gave it express recognition. They always recognized
+the distinction between _jus civile_, or the law of the State, and the
+_jus naturale_, or the law of Nature. They nobly conceived that human
+society was a single unit and that it was governed by a law that was
+both antecedent and paramount to the law of Rome. Thus, the idea of a
+higher law transcending the power of a living generation, and therefore
+eternal as justice itself--became lodged in our system of jurisprudence.
+Nor was the Common Law wanting in a recognition of a higher law that
+would curb the power of King or Parliament, for its earlier masters,
+including four Chief Justices (Coke, Hobart, Holt, and Popham),
+supported the doctrine, as laid down by Coke, that the judiciary had the
+power to nullify a law if it were "against common right and
+reason."--(_Bonham's Case_, 8 Coke Reports, 114.)
+
+This view as to the limitation of government and the denial of its
+omnipotence was powerfully accentuated in America by the very conditions
+of its colonization. The good yeomen of England who journeyed to America
+went in the spirit of the noble and intrepid Kent, when, turning his
+back upon King Lear's temporary injustice, he said that he would "shape
+his old course in a country new." Was it strange that the early
+colonists, as they braved the hardships and perils of a dangerous
+voyage, only to be confronted in the wilderness by disease, famine and
+massacre, should fall back for their own government upon these primal
+verities of human society, and claim not only their inherited rights as
+Englishmen, but also the peculiar privileges of pioneers in an
+unconquered wilderness?
+
+This spirit of constitutionalism in America, which culminated in the
+Constitution of the United States, had its institutional origin in the
+spacious days of Queen Elizabeth. That wonderful age, which gave to the
+world not only Shakespeare, Spenser and Jonson, but also Drake,
+Frobisher and Raleigh, was the Anglo-Saxon reaction to the Renaissance.
+The spirit of man had a new birth and was breaking away from the too
+rigid bonds of ancient custom and authority.
+
+Among the notable, but little known, leaders of that time was Sir Edwin
+Sandys, the leading spirit of the London (or Virginia) company. He was a
+Liberal when to be such was an "extra hazardous risk." He was the son of
+a Liberal, for his father, a great prelate, had been sent to the Tower
+for preaching in defence of Lady Jane Grey. The son, Sir Edwin, was the
+foe of monopolies, and in the same Parliament that impeached the great
+genius of this Inn, Francis Bacon, Sandys advocated the then novel
+proposition that accused prisoners should have the right to be
+represented by counsel, to which the strange objection was made that it
+would subvert the administration of justice. As early as 1613, he had
+boldly declared in Parliament that even the King's authority rested upon
+the clear understanding that there were reciprocal conditions which
+neither ruler nor subject could violate with impunity. He might not too
+fancifully be called the "Father of American Constitutionalism," for he
+caused a constitution--possibly the first time that that word was ever
+applied to a comprehensive scheme of government--to be drafted for the
+little colony of Virginia in 1609 and amplified in 1612. Speaking in
+this venerable Hall, whose very walls eloquently remind us of the mighty
+genius of Francis Bacon, it is interesting to recall that these two
+charters of government, which were the beginning of Constitutionalism in
+America and therefore the germ of the Constitution of the United States,
+were put in legal form for royal approval by Lord Bacon himself. Thus
+the immortal Treasurer of this Inn is directly linked with the
+development of Constitutional freedom in America.
+
+Bacon became a member of the council for the Virginia Company in 1609.
+His deep interest in it is attested in the dedication to him by William
+Strachey in 1618 of the latter's _Historie of Travaile into Virginia
+Brittania_.
+
+In his speech in the House of Commons on January 30, 1621, Bacon saw a
+vision of the future and predicted the growth of America, when he said:
+
+    "This kingdom now first in His Majesty's Times hath gotten a lot or
+    portion in the New World by the plantation of Virginia and the
+    Summer Islands. And certainly it is with the kingdoms on earth as it
+    is in the kingdom of heaven, sometimes a grain of mustard seed
+    proves a great tree."
+
+Truly the mustard seed of Virginia did become a great tree in the
+American Commonwealth.
+
+One of Bacon's nephews, also of the Inns of Court, Nathaniel Bacon,
+became the first Liberal leader in the Colonies, and led the first
+revolt against colonial misrule. He was probably of Gray's Inn, for it
+is difficult to imagine a Bacon studying in any Inn than the one to
+which the great Bacon had given so much loving care.
+
+Due to these charters, on July 30, 1619, the little remnant of colonists
+whom disease and famine had left untouched were summoned to meet in the
+church at Jamestown to form the first parliamentary assembly in America,
+the first-born of the fruitful Mother of Parliaments. It was due to
+Sandys not only that the first permanent English settlement in the
+Western World was planted at Jamestown in 1607, but that a later group
+of "adventurers"--for such they called themselves--destined to be more
+famous, were driven by chance of wind and wave to land on the coast of
+Massachusetts. Thus was established, not only the beginning of England's
+colonial Empire--still one of the most beneficent forces in the
+world--but also the principle of local self-government, which, in the
+Western World, was destined to develop the American Commonwealth. The
+compact, signed in the cabin of the _Mayflower_, while not in strictness
+a constitution, like the Virginia Charter, was yet destined to be a
+landmark of history.
+
+Sandys suffered for his convictions, for the party of reaction convinced
+King James that Virginia was a nest of sedition, and the arbitrary
+ruler, in the reorganization of the London company, gave a pointed
+admonition by saying: "Choose the devil, if you will, but not Sir Edwin
+Sandys." In 1621 he was committed to the Tower and only released after
+the House of Commons had made a vigorous protest against his
+incarceration. His successor as treasurer of the London company was
+Shakespeare's patron, the Earl of Southampton, and it is not a fanciful
+conjecture to assume that, when the news of the disaster which befell
+one of the fleets of the London Company on the Island of Bermuda reached
+England, it inspired Shakespeare to write his incomparable sea idyl,
+_The Tempest_. If so, this lovely drama was Shakespeare's unconscious
+apostrophe to America, for in Ariel--seeking to be free--can be
+symbolized her awakening spirit, while Prospero, with his thaumaturgic
+achievements, suggests a constructive genius, which in a little more
+than a century has made one of the least of the nations to-day one of
+the greatest.
+
+Bacon, Sandys, Southampton and the Liberal leaders of the House of
+Commons had implanted in the ideas of the colonists the spirit of
+constitutionalism, which was destined to influence profoundly the whole
+development of the American colonies, and finally to culminate in the
+Constitution of the United States.
+
+The later struggle in the Long Parliament, the fall of Charles I, and
+more especially the deposition of James II, the accession of William of
+Orange, and the substitution for the Stuart claim of divine right that
+of the supremacy of the people in Parliament, naturally had their
+reaction in the Western World in intensifying the spirit of
+constitutionalism in the growing American Commonwealth.
+
+The colonial history was therefore increasingly marked by a spirit of
+individualism, a natural partiality for local rule, and a tenacious
+adherence to their special privileges, whether granted to Crown
+colonies, like New Hampshire, New York, New Jersey, Virginia, the two
+Carolinas, and Georgia, or proprietary governments, like Maryland,
+Delaware, and Pennsylvania, or charter governments, such as
+Massachusetts, Rhode Island, and Connecticut. In the three colonies last
+named formal corporate charters were granted by the Crown, which in
+themselves were constitutions in embryo, and the colonists thus acquired
+written rights as to the government of their internal affairs, upon the
+maintenance of which they jealously insisted. Thus arose the spirit in
+America, which treated constitutional rights, not so much as special
+privileges granted by plenary Sovereignty, but as contractual
+obligations which could be enforced in the Courts against the Sovereign.
+
+All this developed in the colonists a powerful sense of constitutional
+morality, and its pertinency to my present theme lies in the fact that
+when each of the thirteen colonies became, at the conclusion of the War
+of Independence, a separate and independent nation, they were more
+concerned, in establishing a central government, to limit its authority
+and to maintain local self-government than they were to give to the
+new-born nation the powers which it needed. They carried their
+constitutionalism to extremes, which nearly made a strong and efficient
+central government an impossibility.
+
+Nothing was less desired by them than a unified government. It was
+destined to be wrung from their hard necessities. The Constitution was
+the reflex action of two opposing tendencies, the one the imperative
+need of an efficient central government, and the other the passionate
+attachment to local self-rule. Co-operation between the colonies had
+been a matter of long discussion and earnest debate, and primarily
+resulted from the necessity of defence against a common foe the French
+in Canada, and the Indians of the forest. In 1643 four of the New
+England colonies united in a league to defend themselves. In 1693
+William Penn made the first suggestion for a union of all the colonies.
+In 1734 a council was held at Albany at the instance of the Crown to
+provide the means for the defence against France in Canada, and it was
+then that Franklin submitted the first concrete form for a union of the
+colonies into a permanent alliance. It was in advance of the times, for,
+conservative as it was, it was unfortunately opposed both by the Crown
+and the colonies themselves.
+
+The time was not ripe for any such union, and the reason was apparent.
+The colonies differed very much in the character of their populations,
+in the nature of their economic interests, and in their political
+antecedents. They were not wholly of the English race. Many nations in
+Europe had already contributed to the population. For example, New York
+was partly Dutch, and in Pennsylvania there was a considerable element
+of the Swedes, Germans, and Swiss. Moreover, the colonists were as
+widely separated from each other, measured by the facilities of
+locomotion, as are the most remote nations of the world to-day. Only a
+few men ever found occasion to leave their colony to journey to another,
+and most men never left, from birth to death, the community in which
+they lived. Outside of the few scattered communities in the different
+colonies there was an almost unbroken wilderness, with few wagon roads
+and in places only a bridle path. The only methods of communication were
+the letters and still fewer newspapers, which were carried by post
+riders often through an almost trackless wilderness.
+
+Obviously, a working government could not easily be constituted between
+peoples of different religions, races, and economic interests, who, for
+the most part, never met each other face to face and with whom frequent
+communication was impossible.
+
+The differences between the colonies and the mother-country with respect
+to internal taxation slowly developed into an issue of constitutionalism
+rather than of legislative policy. As in England, the immediate question
+affected the power of the Crown to give to the customs inspectors the
+power to make general searches and seizures, to enforce the navigation
+laws. In 1761 James Otis, of Massachusetts, made a fateful speech before
+the colonial legislature, in which, asserting the illegality of the
+search warrants on the ground that they violated the constitutional
+rights of Englishmen to protection in their own homes, he asserted that
+Acts of Parliament which violated the sanctity of the home were void and
+that, more specifically, they violated the charter granted to
+Massachusetts. Asserting the doctrine which at that time was the
+doctrine of the English common law, as stated by Coke and three other
+Chief Justices, he said:
+
+    "To say the parliament is absolute and arbitrary is a contradiction.
+    The Parliament cannot make two and two five. Omnipotency cannot do
+    it.... Parliaments are in all cases to declare what is for the good
+    of the whole; but it is not the declaration of parliament that makes
+    it so: there must be in every instance a higher authority, viz.,
+    GOD. Should an Act of Parliament be against any of His natural laws,
+    which are immutably true, their declaration would be contrary to
+    eternal truth, equity and justice, and consequently void; and so it
+    would be adjudged by the Parliament itself, when convinced of their
+    mistake."
+
+It is a curious fact that in the reaction from the tyranny of the
+Stuarts your country abandoned this principle of the common law by
+substituting for the omnipotence of the Crown the omnipotence of
+Parliament, while in my country the somewhat vague and unworkable
+principle of the common law, which gave the judiciary the power to
+invalidate an act of the legislature, when against natural reason and
+justice, was developed into the great principle, without which
+institutions in an heterogeneous and widely scattered democracy would be
+unworkable, namely that the powers of government are strictly defined,
+and that neither the executive, the legislative, nor the judicial
+departments of the government can go beyond the precise limits
+established by the fundamental law. Like the common law, the
+Constitution was thus the result of a slow evolution. Mr. Gladstone, in
+his oft-quoted remark, gave an erroneous impression when he said:
+
+    "As the British Constitution is the most subtle organism which has
+    proceeded from progressive history, so the American Constitution is
+    the most wonderful work ever struck off, at a given time by the
+    brain and purpose of man."
+
+This assumes that the Constitution sprang, like Minerva, armed
+_cap-a-pie,_ from the brain of the American people, whereas it was as
+much the result of a slow, laborious, and painful evolution as was the
+British Constitution. Probably Gladstone so understood the development
+of the American Constitution and recognized that its framing was only
+the culmination of an evolution of many years.
+
+When the constitutional struggle between the colonies and the Parliament
+became acute, the necessity of a union for a common defence became
+imperative. As early as July, 1773, Franklin recommended the "convening
+of a General Congress" so that the colonies would act together. His
+suggestion was introduced in the Virginia House of Burgesses in May,
+1774, and as a result there met in Philadelphia on September 5 of that
+year the first Continental Congress, styled by themselves: "The
+Delegates appointed by the Good People of these Colonies." Nothing was
+further from their purpose than to form a central government or to
+separate from England. This Congress only met as a conference of
+representatives of the colonies to defend what they conceived to be
+their constitutional rights.
+
+Before the second Continental Congress met in the following year, the
+accidental clash at Lexington and Concord had taken place, and as the
+Congress again re-convened a momentous change had taken place, which
+was, in fact, the beginning of the American Commonwealth. The Congress
+became by force of circumstances a provisional government, and as such
+it might well have claimed plenary powers to meet an immediate exigency.
+So indisposed were they to separate from England or to substitute for
+its rule that of a new government, that the Continental Congress, when
+it then involuntarily took over the government of America, failed to
+exercise any adequate power. It remained simply a conference without
+real power. Each colony had one vote and the rule of unanimity
+prevailed. Even its decisions were largely advisory, for they amounted
+to little more than recommendations to the constituent States as to what
+measures should be taken. Each colony complied with the recommendation
+in its discretion and in its own way. Notwithstanding this fatal lack of
+authority, the Continental Congress, then actually engaged in civil war,
+created an army, and, through its committees, entered into negotiations
+with foreign nations. To support the former, it issued paper money, with
+the disastrous result that could be readily anticipated. While it had a
+presiding officer, it had no executive, and the new nation, which was
+hardly conscious of its own birth, had no judiciary.
+
+Had this _de facto_ government assumed the plenary powers which
+provisional governments must, under similar circumstances, necessarily
+assume, it would have been better for the cause of the colonists. For
+want of an efficient central government, the civil administration of the
+infant nation was marked by a weakness and incapacity that defeated
+Washington's plans and nearly broke his spirit. Washington's little army
+was the victim of the gross incapacity of an impotent government. The
+soldiers came and went, not as the general commanded, but as the various
+colonies permitted. The tragedy of Valley Forge, when the little army
+nearly starved to death, and literally the soldiers could be tracked
+over the snows by their bleeding, unshod feet, was not due to lack of
+clothing and provisions, but to the gross incapacity of a headless
+government that if it had had the wisdom to act lacked the authority.
+The situation was one of chaos. The colonies recruited their own
+contingents, paid such taxes as they pleased, which grew increasingly
+less, and the Congress had no coercive power to enforce its policies,
+either with reference to internal or external affairs. This situation
+was so clearly recognized that immediately after the Declaration of
+Independence on July 4, 1776, the draft of a constitution was proposed
+to give the central government more effective power; but, although the
+necessity was manifest and most urgent, the so-called Articles of
+Confederation, which were then drafted in 1776, were never finally
+adopted by the requisite number of States until March, 1781, when the
+war was nearly over. As the result proved, they marked only a very small
+advance over the existing _de facto_ government, for the constituent
+States were still too jealous of each other and too hostile to the
+creation of a central government to form a truly effective government.
+The founders of the Republic could only learn from their errors, but it
+is their great merit that they had the ability to profit in the stern
+school of experience, of which Franklin has said that it is a "dear
+school, but fools will learn in no other."
+
+The founders of the Republic were not fools, and while they did not, as
+Gladstone seems to intimate, have the inspired wisdom to develop a
+wonderful Constitution by sheer intuition unaided by experience, they
+did have the ability to make of their very errors the stepping-stones to
+a higher destiny.
+
+By the Articles of Confederation, which, as stated, became effective in
+1781, the conduct of foreign affairs was vested in the new government,
+which was also given the power to create admiralty courts, regulate
+coinage, maintain an army and navy, borrow money, and emit bills of
+credit, but the great limitation was that in all other respects the
+constituent States retained absolute power, especially with reference to
+commerce and taxation. All that the central government could do was to
+requisition the States to furnish food supplies, and the States were
+then left to impose the taxes and, if necessary, to enforce their
+payment in their own way, with the inevitable result that they vied with
+each other in the struggle to evade them. The Confederation had no
+direct power over the citizens of the several States. Moreover, the
+Congress could not levy any taxes, or indeed pass any measure unless
+nine out of the thirteen States agreed, and the Constitution could not
+be amended except by unanimous vote. While the Congress could select a
+presiding officer to serve for one year, yet he had no real executive
+authority. During the recess of the Congress, a committee of thirteen,
+consisting of one delegate from each State, had _ad interim_ powers, but
+not greater than the Congress, which they represented.
+
+Such a government would have been fatal to any people, and so it nearly
+proved to be to the infant nation. Two circumstances saved them from the
+consequences of such incapacity: one was the invaluable aid of France,
+and the other the personality of George Washington. Of this great
+leader, one of the noblest that ever "lived in the tide of time," it is
+only necessary to quote the fine tribute paid to him by the greatest of
+the Victorian novelists in his _Virginians_:
+
+    "What a constancy, what a magnanimity, what a surprising
+    persistence against fortune!... Washington, the chief of a nation
+    in arms, doing battle with distracted parties; calm in the midst of
+    conspiracy; serene against the open foe before him and the darker
+    enemies at his back; Washington, inspiring order and spirit into
+    troops hungry and in rags; stung by ingratitude, but betraying no
+    anger, and every ready to forgive; in defeat invincible, magnanimous
+    in conquest and never so sublime as on that day when he laid down
+    his victorious sword and sought his noble retirement--here, indeed,
+    is a character to admire and revere; a life without a stain, a fame
+    without a flaw."
+
+A year after the Articles of Confederation had been adopted, the war
+came to an end by a preliminary treaty on November 30, 1782.
+
+Now follows the least known chapter in American history. It was a period
+of travail, of which the Constitution of the United States and the
+present American nation were born. The government slowly succumbed from
+its own weakness to its inevitable death. Only the shreds and patches of
+authority were left. Gradually the union fell apart. Of the Continental
+Congress only fifteen members, representing seven colonies, remained to
+transact the affairs of the new nation. The army, which previously to
+the termination of the war had dissolved by the hundreds, was now unpaid
+and in a stale of revolt. Measure after measure was proposed in Congress
+to raise money to pay the interest on the bonded indebtedness, which was
+in arrears, and to provide funds for the most necessary expenses, but
+these failed, in Congress for the want of the necessary nine votes or,
+if enacted, the States treated the requisitions with indifference. The
+currency of the United States had fallen almost as low as the Austrian
+kronen, and men derisively plastered the walls of their houses with the
+worthless paper of the Continental Congress. Adequate authority no
+longer remained to carry out the terms of the treaties with England and
+France, and they were nullified by the failure of the infant nation to
+comply with its own obligations and the consequent refusal of the other
+contracting parties to comply with theirs. The government made a call
+upon the States to raise $8,000,000 for the most vital needs, but only
+$400,000 was actually received. Then Congress asked the States to vest
+in it the power to levy a tax of five per cent, on imports for a limited
+period, but, after waiting two years for the action of the States, less
+than nine concurred. The States were then asked to pledge their own
+internal revenue for twenty-five years to meet the national
+indebtedness, but this could only be done by unanimous consent, and
+while twelve States concurred, Rhode Island refused and the measure was
+defeated. It was again the infinite folly of the _liberum veto_ which,
+prior to the great partition, condemned Poland to chronic anarchy.
+
+The impotence of the new government, which was still sitting in
+Philadelphia, can be measured by the fact that on June 9, 1783, word
+came that eighty soldiers were on their way to Philadelphia to demand
+relief. They stacked their arms in front of the State House, where the
+Congress was then sitting, and refused to disband, when requested by
+Col. Alexander Hamilton, as the representative of the Congress, to do
+so. When Congress appealed to the government of Pennsylvania for
+protection, it was advised that the Pennsylvania militia was likewise
+insubordinate. The Congress then hastily fled by night and became a
+fugitive.
+
+The impotence of the Confederation can be measured by the fact that in
+the last fourteen months of its existence its receipts were less than
+$400,000, while the interest on the foreign debt alone was over
+$2,400,000, and the interest on the internal debt was five-fold greater.
+
+In the absence of any government and in the period of general
+prostration it was not unnatural that the spirit of Bolshevism grew with
+alarming rapidity. It even permeated the officers of the Army. In March,
+1783, an anonymous communication was sent to Washington's officers to
+meet in secret conference to take some action, possibly to overthrow the
+government. A copy fell into Washington's hands and, while he forbade
+the assemblage of the officers under the anonymous call, he himself
+directed the officers to assemble. He unexpectedly appeared at the
+meeting and, being no speaker, he had reduced his appeal to writing. As
+he adjusted his spectacles to read it, he pathetically said: "I have not
+only grown gray but blind in your service." He then made a touching
+appeal to them not to increase by example the spreading spirit of
+revolt. The very sight of their old commander turned the hearts of the
+revolting element and the officers remained loyal to their noble leader.
+
+Where the spirit of disaffection was thus found in high places it
+naturally prevailed more widely among the masses who had been driven to
+frenzy by their sufferings. This culminated in a revolt in Massachusetts
+under the leadership of an old soldier named Shays, and it spread with
+such rapidity that not only did one-fifth of the people join in
+attempting to overthrow the remnant of established authority in
+Massachusetts, but it rapidly spread to other States. The offices of
+government and the courthouses were seized, the collection of debts was
+forbidden, and private property was forcibly appropriated to meet the
+common needs.
+
+Chaos had come again. It filled Washington's heart with disgust and
+despair. After surrendering his commission to the pitiful remnant of the
+government he had retired to Mount Vernon, and for a time declined to
+act further as the leader of his people. Thus, in October, 1785, he
+wrote James Warren, of Massachusetts:
+
+    "The war, as you have very justly observed, has terminated most
+    advantageously for America, and a fair field is presented to our
+    view; but I confess to you freely, my dear sir, that I do not think
+    we possess wisdom or justice enough to cultivate it properly.
+    Illiberality, jealousy, and local policy mix too much in all our
+    public councils for good government of the union. In a word, the
+    Confederation appears to me to be little more than a shadow without
+    the substance, and Congress a nugatory body, their ordinances being
+    little attended to.... By such policy as this the wheels of
+    government are clogged, and our brightest prospects, and that high
+    expectation which was entertained of us by the wondering world, are
+    turned into astonishment; and, from the high ground on which we
+    stood, we are descending into the vale of confusion and darkness."
+
+Again he wrote to George Mason:
+
+    "I have seen without despondency, even for a moment, the hours which
+    America has styled its gloomy ones, but I have beheld no day since
+    the commencement of hostilities that I thought our liberties in such
+    imminent danger as at present. Indeed, we are verging so fast to
+    destruction that I am feeling that sense to which I have been a
+    stranger until within these three months."
+
+Again in 1786 he writes:
+
+    "I think often of our situation, and view it with concern. From the
+    high ground we stood upon, from the plain path which invited our
+    footsteps, to be so fallen, so lost, is mortifying; but everything
+    of virtue has, in a degree, taken its departure from our land....
+    What, gracious God, is man that there should be such inconsistency,
+    and perfidiousness in his conduct! It was but the other day that we
+    were shedding our blood to obtain the Constitutions under which we
+    now live, and now we are unsheathing our swords to overturn them.
+    The thing is so unaccountable that I hardly know how to realize it
+    or to persuade myself that I am not under an illusion of a dream."
+
+It was, however, the darkest hour before the dawn, and again it was
+Washington who became his country's saviour. In 1785, some commissioners
+from the States of Virginia and Maryland visited Mount Vernon to pay
+their respects to the well-loved commander. After conferring with him
+upon the chaos of the times, they decided to issue a call for a general
+conference of the representatives of the States to be held on September
+11, 1786, at Annapolis, Maryland, to discuss how far the States
+themselves could agree on common regulations of commerce. At the
+appointed time the delegates assembled from Virginia, Pennsylvania,
+Delaware, New York and New Jersey, and finding themselves too few in
+number to achieve the great objective, the convention contented itself
+by issuing another call, drafted by Alexander Hamilton, then under
+thirty years of age, to all the States to send delegates to a convention
+to be held in Philadelphia on the second Monday in May, 1787, "to take
+into consideration the situation of the United States, to devise such
+further provisions as should appear to them necessary to render the
+Constitution of the Federal Government adequate to the exigencies of the
+Union."
+
+The dying Congress tardily approved of this suggestion, but finally, on
+January 21, 1787, grudgingly adopted a resolution that--
+
+    "It is expedient that on the second Monday in May next a convention
+    of delegates, who shall have been appointed by the several States,
+    be held at Philadelphia _for the sole and express purpose of
+    revising the Articles of Confederation_ and reporting to Congress
+    and the several legislatures such alterations and provisions therein
+    as shall, _when agreed to in Congress_ and conformed to by the
+    States, render the Federal Constitution adequate to the exigency of
+    the government and the preservation of the union."
+
+It will be noted by the italicized portions of the resolution that this
+impotent body thus vainly attempted to cling to the shadow of its
+vanished authority by stating that the proposed constitutional
+convention should merely revise the worthless Articles of Confederation
+and that such amendments should not have validity until adopted by
+Congress as well as by the people of the several States. How this
+mandate was disregarded and how the convention was formed, and
+proceeded to create a new government with a new Constitution, and how
+it achieved its mighty work, will be the subject of the next lecture.
+
+Anticipating the masterly ability with which a seemingly impotent and
+dying nation plucked from the nettle of danger the flower of safety, let
+me conclude this first address by quoting the words of de Tocqueville,
+in his remarkable work _Democracy in America_, where he says:
+
+    "The Federal Government, condemned to impotence by its Constitution
+    and no longer sustained by the presence of common danger ... was
+    already on the verge of destruction when it officially proclaimed
+    its inability to conduct the government and appealed to the
+    constituent authority of the nation.... It is a novelty in the
+    history of a society to see a calm and scrutinizing eye turned upon
+    itself, when apprised by the legislature that the wheels of
+    government are stopped; to see it carefully examine the extent of
+    the field and patiently wait for two years until a remedy was
+    discovered, which it voluntarily adopted, without having ever wrung
+    a tear or a drop of blood from mankind."
+
+
+
+
+_II. The Great Convention_
+
+
+Now follows a notable and yet little known scene in the drama of
+history. It reveals a people who, without shedding a drop of blood,
+calmly and deliberately abolished one government, substituted another,
+and erected it upon foundations which have hitherto proved enduring.
+Even the superstructure slowly erected upon these foundations has
+suffered little change in the most changing period of the world's
+history, and until recently its additions, few in number, have varied
+little from the plans of the original architects. The Constitution is
+to-day, not a ruined Parthenon, but rather as one of those Gothic
+masterpieces, against which the storms of passionate strife have beaten
+in vain. The foundations were laid at a time when disorder was rampant
+and anarchy widely prevalent. As I have already shown in my first
+lecture, credit was gone, business paralysed, lawlessness triumphant,
+and not only between class and class, but between State and State, there
+were acute controversies and an alarming disunity of spirit. To weld
+thirteen jealous and discordant States, demoralized by an exhausting
+war, into a unified and efficient nation against their wills, was a
+seemingly impossible task. Frederick the so-called Great had said that a
+federal union of widely scattered communities was impossible. Its final
+accomplishment has blinded the world to the essential difficulty of the
+problem.
+
+The time was May 25, 1787; the place, the State House in Philadelphia, a
+little town of not more than 20,000 people, and, at that time, as
+remote, measured by the facilities of communication, to the centres of
+civilization as is now Vladivostok.
+
+The _dramatis personae_ in this drama, though few in numbers, were,
+however, worthy of the task.
+
+Seventy-two had originally been offered or given credentials, for each
+State was permitted to send as many delegates as it pleased, inasmuch as
+the States were to vote in the convention as units. Of these, the
+greatest actual attendance was fifty-five, and at the end of the
+convention a saving remnant of only thirty-nine remained to finish a
+work which was to immortalize its participants.
+
+While this notable group of men contained a few merchants, financiers,
+farmers, doctors, educators, and soldiers, of the remainder, at least
+thirty-one were lawyers, and of these many had been justices of the
+local courts and executive officers of the commonwealths. Four had
+studied in the Inner Temple, at least five in the Middle Temple, one at
+Oxford under the tuition of Blackstone and two in Scottish Universities.
+Few of them were inexperienced in public affairs, for of the original
+fifty-five members, thirty-nine had been members of the first or second
+Continental Congresses, and eight had already helped to frame the
+constitutions of their respective States. At least twenty-two were
+college graduates, of whom nine were graduates of Princeton, three of
+Yale, two of Harvard, four of William and Mary, and one each from the
+Universities of Oxford, Columbia, Glasgow, and Edinburgh. A few already
+enjoyed world-wide fame, notably Doctor Franklin, possibly the most
+versatile genius of the eighteenth century and universally known and
+honoured as a scientist, philosopher, and diplomat, and George
+Washington, whose fame, even at that day, had filled the world with the
+noble purity of his character.
+
+It was a convention of comparatively young men, the average age being
+little above forty. Franklin was the oldest member, being then
+eighty-one; Dayton, the youngest, being twenty-seven. With the
+exception of Franklin and Washington, most of the potential
+personalities in the convention were under forty. Thus, James Madison,
+who contributed so largely to the plan that he is sometimes called "The
+Father of the Constitution," was thirty-six. Charles Pinckney, who,
+unaided, submitted the first concrete draft of the Constitution, was
+only twenty-nine, and Alexander Hamilton, who was destined to take a
+leading part in securing its ratification by his powerful oratory and
+his very able commentaries in the Federalist papers, was only thirty.
+
+Above all they were a group of gentlemen of substance and honour, who
+could debate for four months during the depressing weather of a hot
+summer without losing their tempers, except momentarily--and this
+despite vital differences--and who showed that genius for toleration and
+reconciliation of conflicting views inspired by a common fidelity to a
+great objective that is the highest mark of statesmanship. They
+represented the spirit of representative government at its best in
+avoiding the cowardice of time-servers and the low cunning of
+demagogues. All apparently were inspired by a fine spirit of
+self-effacement. Selfish ambition was conspicuously absent. They
+differed, at times heatedly, but always as gentlemen of candour and
+honour. The very secrecy of their deliberations, of which I shall
+presently speak, is ample proof how indifferent they were to popular
+applause and the _civium ardor prava jubentium_.
+
+The convention had been slow in assembling. Ample notice had been given
+that it would convene on May 13, 1787, but when that day arrived a mere
+handful of the delegates, less than a quorum, had assembled.
+
+The Virginia delegation, six in number, and forming probably the ablest
+delegation from any State, arriving in time, and failing to find a
+quorum then assembled, employed the period of waiting in submitting to
+the Pennsylvania delegation the outlines of a plan for the new
+Constitution. The plan was largely the work of James Madison, and how
+long it had been in preparation cannot be definitely stated. It is clear
+that four years before a Philadelphia merchant, one Peletiah Webster,
+had published a brochure proposing a scheme of dual sovereignty, under
+which the citizens would owe a double allegiance--one to the constituent
+States within the sphere of their reserved powers, and one to a
+federated government within the sphere of its delegated powers. Leagues
+of States had often existed, but a league which, within a prescribed
+sphere, would have direct authority over the citizens of the constituent
+States, without, however, abolishing the authority of such States as to
+their reserved sphere of power, was a novel theory. How far the Virginia
+project had been influenced by Webster's suggestion is not clear, but it
+is certain that before the convention met Pennsylvania and Virginia,
+two of the most powerful States, were committed to it.
+
+The suggestion was a radical one, for the States, with few exceptions,
+were chiefly insistent upon the preservation of their sovereignty, and
+while they were willing to amend the Articles of Confederation by giving
+fuller authority to the central government, such as it was, the
+suggestion of subordinating the States to a new sovereign power, whose
+authority within circumscribed limits was to be supreme, was opposed to
+all their conventions and traditions. Washington, however, had warmly
+welcomed the creation of a strong central government, and his
+correspondence with the leading men of the colonies for some years
+previously had been burdened with arguments to convince them that a mere
+league of States would not suffice to create a stable nation. To George
+Washington, soldier and statesman, is due above all men the ideal of a
+federated union, for without his influence--that of a noble and
+unselfish leader--the great result would probably never have been
+secured. While still waiting for the convention, to meet, and while
+discussing what was expedient and practicable when they did meet,
+Washington one day said to a group of delegates, who were considering
+the acute nature of the crisis:
+
+    "It is too probable that no plan that we propose will be adopted.
+    Perhaps another dreadful conflict is to be sustained. If, to please
+    the people, we offer what we ourselves disapprove, how can we
+    afterwards defend our work? Let us raise a standard to which the
+    wise and just can repair. The event is in the hand of God."
+
+Noble words, fit to be written in letters of gold over the portal of
+every legislature of the world, and it was in this spirit that the
+convention finally convened on May 25th, 1787.
+
+When the delegates from nine States had assembled, Washington was
+unanimously elected the presiding officer of the convention. It began by
+adopting rules of order, and the most significant of these was the
+provision for secrecy. No copy should be taken of any entry on the
+Journal, or even permission given to inspect it, without leave of the
+convention, and "nothing spoken in the house be printed or otherwise
+published or communicated without leave." The yeas and nays should not
+be recorded. The rule of secrecy was enlarged by an unwritten
+understanding that, even when the convention had adjourned, no
+disclosure should be made of its proceedings during the life of its
+members. When after nearly four months, the convention adjourned, the
+secret had been kept, and no one knew even the concrete result of its
+deliberations until the Constitution itself, and nothing else, was
+offered to the approval of the people. The high-way, upon which the
+State House fronted, was covered with earth, to deaden the noise of
+traffic, and sentries were posted at every means of ingress and egress,
+to prevent any intrusion upon the privacy of the convention. The members
+were not photographed daily for the pictorial Press, nor did any cinema
+register their entrance into the simple colonial hall where they were to
+meet. Notwithstanding this limitation--for no present-day conference or
+assembly can proceed with its labours until its members are photographed
+for the curiosity of the public--these simple-minded gentlemen--less
+intent upon their appearance than their task--were to accomplish a work
+of enduring importance.
+
+The extreme care which was taken to preserve this secrecy inviolate, and
+its purpose, were indicated in an incident handed down by tradition.
+
+One of the members dropped a copy of a proposition then before the
+convention for consideration, and it was found by another of the
+delegates and handed to General Washington. At the conclusion of the
+session, Washington arose and sternly reprimanded the member for his
+carelessness by saying:
+
+    "I must entreat gentlemen to be more careful, lest our transactions
+    get into the newspapers and disturb the public repose by premature
+    speculations. I know not whose paper it is, but there it is
+    [_throwing it down on the table_]. Let him who owns it, take it."
+
+He then bowed, picked up his hat and left the room with such evidences
+of annoyance that, like school-children, no delegate was willing to
+admit the ownership of the paper.
+
+The thought suggests itself: How different the result at Versailles and
+Genoa might have been had there been the same reasonable provisions for
+discussion and action uninfluenced by too premature public comment of
+the day! In these days, when representative government has degenerated
+into government by a fleeting public opinion, the price we pay for such
+government by, for and of the Press, is too often the inability of
+representatives to do what they deem wise and just.
+
+At the close of the convention its records were committed into the
+keeping of Washington, with instructions to "retain the journal and
+other papers, subject to order of Congress, if ever formed under the
+Constitution."
+
+Even the journal consisted of little more than daily memoranda, from
+which the minutes ought to have been, but never were, made; and these
+fragmentary records of the proceedings of a convention which had been in
+continuous session for nearly four months were never published until the
+year 1819, or thirty-two years after the close of the convention. Thus,
+the American people knew nothing of their greatest convention until a
+generation later, and then only a few bones of the mastodon were
+exhibited to their curious gaze.
+
+The members of the convention kept its secrets inviolate for many years.
+With few exceptions, the great secrets of the convention died with them.
+Only one, James Madison, left a comprehensive statement of the more
+formal proceedings. With this notable exception, only a few anecdotes,
+handed down by tradition, escaped oblivion. The first of the number to
+break the pledge of secrecy was Robert Yates, Chief Justice of New York,
+who, in 1821, published his recollections; but, as he had left the
+convention a few months after it began, his notes ceased with the 5th of
+July.
+
+The world would thus have been for ever ignorant of the details of one
+of the most remarkable conventions in the annals of mankind had it not
+been that one of the ablest of their number, James Madison, regularly
+attended the sessions and kept notes from day to day of the debates.
+While he was not a stenographer, he had a gift for condensing a speech
+and fairly representing its substance. He jealously guarded his Journal
+of the Convention until his death. Its very existence was known to few.
+He died in 1836, and four years later the government purchased the
+manuscript from his widow. Then, for the first time, the curtain was
+measurably raised upon the proceedings of a convention which had
+created, as we now know, one of the greatest nations in history.
+Fifty-three years after the close of the convention, and when nearly
+every one of its participants were dead, Madison's Journal was first
+published.
+
+When was a great secret better kept? Grateful as posterity must be for
+this inestimable gift of great human enterprise, yet even Madison's
+careful journal fills one with the deepest regret that this wonderful
+debate, which lasted for nearly four months between men of no ordinary
+ability, could not have been preserved to the world.
+
+Two or three of the speeches which Madison gives in his Journal are
+complete, for when Doctor Franklin spoke he reduced his remarks to
+writing and gave a copy to Madison, but of the other speeches only a
+fragrant remains. Thus, that "admirable Crichton," Alexander Hamilton,
+addressed the convention in a speech that lasted five hours, in which he
+stated his philosophy of government, but of that only a short
+condensation, and possibly not even an accurate fragment, remains.
+
+Without this extraordinary provision for secrecy, which is so opposed to
+modern democratic conventions, and which so little resembles the famous
+point as to "open covenants openly arrived at," the convention could not
+have accomplished its great work, for these wise men realized that a
+statesman cannot act wisely under the observation of a gallery, and
+especially when the gallery compels him by the pressure of public
+opinion to work as it directs. I recognize that public opinion--often
+temporarily uninformed but in the end generally right--does often save
+the democracies of the world from the selfish ends of self-seeking and
+misguided leadership; but, given noble and wise representatives, they
+work best when least influenced by the fleeting passions of the day.
+
+It is evident that if the framers of the Constitution had met, as
+similar conventions have within recent years met at Versailles and
+Genoa, with the world as their gallery and with the representatives of
+the Press as an integral part of the conference, they would have
+accomplished nothing. The probability is that the convention would not
+have lasted a month if their immediate purpose had been to placate
+current opinion. It may be doubted whether such a convention, if called
+to-day, either in your country or mine, could achieve like results, for
+in this day of unlimited publicity, when men divide not as individuals
+but in powerful and organized groups, a constitutional convention would,
+I fear, prove a witches' cauldron of class legislation and demagoguery.
+Is it not possible that modern democracy is in danger of strangulation
+by its present-day methods and ideals? Again the words of Washington
+suggest themselves: "If, to please the people, we offer what we
+ourselves disapprove, how can we afterwards defend our work? Let us
+raise a standard to which the wise and just can repair."
+
+Working with a sad sincerity and with despair in their hearts, this
+little band of men wrought a work of surpassing importance, and if they
+did not receive the immediate plaudits of the living generation, their
+shades can at least solace themselves with the reflection that posterity
+has acclaimed their work as one of the greatest political achievements
+of man.
+
+The rules of order and the nature of the proceedings thus determined,
+the convention opened by an address by Mr. Randolph of Virginia, in
+which he submitted, in the form of fifteen points--nearly the number of
+the fatal fourteen--the outlines for a new government. He himself in his
+opening speech summarized the propositions by candidly confessing "that
+they were not intended for a federal government" (thereby meaning a mere
+league of States) but "a strong consolidated union." Upon this radical
+change the convention was to argue earnestly and at times bitterly for
+many a weary day. The plan provided for a national legislature of which
+the lower branch should be elected by the people and the upper branch by
+the lower branch upon the nomination of the legislatures of the States.
+This legislature should enjoy all the legislative rights given to the
+federation, and there followed the sweeping grant that it "could
+legislate in all cases to which the separate States are incompetent or
+in which the harmony of the United States may be interrupted by the
+exercise of individual legislation," with power "to negative all laws
+passed by the several States contravening in the opinion of the national
+legislature the Articles of the Union."
+
+A national executive was proposed, together with a national judiciary,
+and these two bodies were given authority "to examine every act of the
+national legislature before it shall operate and every act of a
+particular legislature before a negative thereon shall be final." This
+marked an immense advance over the Articles of Confederation, under
+which there was no national executive or judiciary, and under which the
+legislature had no direct power over the citizens of the States, and
+could only impose duties upon the States themselves by the concurrence
+of nine of the thirteen.
+
+Hardly had Mr. Randolph submitted the so-called Virginia plan when
+Charles Pinckney, of South Carolina, a young man of twenty-nine years
+of age, with the courage of youth submitted to the House a draft of the
+future federal government. Curiously enough, it did not differ in
+principle from the Virginia plan, but was more specific and concrete in
+stating the powers which the federal government should exercise, and
+many of its provisions were embodied in the final draft. Indeed,
+Pinckney's plan was the future Constitution of the United States in
+embryo; and when it is read and contrasted with the document which has
+so justly won the acclaim of men throughout the world, it is amazing
+that so young a man should have anticipated and reduced to a concrete
+and effective form many of the most novel features of the Federal
+Government. As the only copy of Pinckney's plan was furnished years
+afterwards to Madison for his journal, it is possible that some of its
+wisdom was of the _post factum_ variety.
+
+Having received the two plans, the convention then went, on May 30,
+into a committee of the whole to consider the fifteen propositions in
+the Virginia plan _seriatim_. They wisely concluded to determine
+abstract ideas first and concrete forms later. Apparently for the time
+being little attention was paid to Pinckney's plan, and this may have
+been due to the hostile attitude of the older members of the convention
+to the presumption of his youth.
+
+Then ensued a very remarkable debate on the immediate propositions and
+the principles of government which underlay them, which lasted for two
+weeks. On June 13 the committee rose. Even the fragments of this debate,
+which may well have been one of the most notable in history, indicate
+the care with which the members had studied governments of ancient and
+modern times. There were many points of difference, but chief of them,
+which nearly resulted in the collapse of the convention, was the
+inevitable difficulty which always arises in the formation of a league
+of States or an association of nations between the great and the little
+States.
+
+The five larger States had a population that was nearly twice as great
+as the remaining eight States. Thus Virginia's population was nearly
+ten-fold as great as Georgia. Moreover, the States differed greatly in
+their material wealth and power. Nevertheless, all of them entered the
+convention as independent sovereign nations, and the smaller nations
+contended that the equality in suffrage and political power which
+prevailed in the convention (in which each State, large or small, voted
+as a unit), should and must be preserved in the future government. To
+this the larger States were quite unwilling to yield, and when the
+committee rose they reported, in substance, the Virginia plan, with the
+proviso that representation in the proposed double-chambered Congress
+should be "according to some equitable ratio of representation."
+
+On June 15 the small States presented their draft, which was afterwards
+known as the New Jersey plan, because it was introduced by Mr. Patterson
+of that State. It only contemplated an amendment to the existing
+Constitution and an amplification of the powers of the impotent
+Confederation. Its chief advance over the existing government was that
+it provided for a federal executive and a federal judiciary, but
+otherwise the government remained a mere league of States, in which the
+central government could generally act only by the vote of nine States,
+and in which their power was exhausted when they requested the States to
+enforce the decrees. Its chief advance over the Articles of
+Confederation, in addition to the creation of an executive, was an
+assertion that the acts of Congress "shall be the supreme law of the
+respective States ... and that the judiciary of the several States shall
+be bound thereby in their decisions," and that "if any State or any
+body of men in any State shall oppose or prevent the carrying into
+execution of such acts or treaties the federal executive shall be
+authorized to call forth the power of the confederated States ... to
+enforce and compel obedience to such acts or an observance of such
+treaties."
+
+While this was some advance toward a truly national government, it yet
+left the national executive dependent upon the constituent States, for
+if they failed to respond to the call above stated the national
+government had no direct power over their citizens.
+
+The New Jersey plan precipitated a crisis, and thereafter, and for many
+days, the argument proceeded, only to increase in bitterness.
+
+On June 18 Alexander Hamilton, who agreed with no one else, addressed
+the convention for the first time. He spoke for five hours and reviewed
+exhaustively the Virginia and New Jersey plans, and possibly the
+Pinckney draft. Even the fragment of the speech, as taken in long-hand
+by Madison, shows that it was a masterly argument. He stated his belief
+"that the British Government was the best in the world and that he
+doubted much whether anything short of it would do in America." He
+praised the British Constitution, quoting Monsieur Necker as saying that
+"it was the only government in the world which unites government
+strength with individual security." He analysed and explained your
+Constitution as it then was and advocated an elective monarchy in form
+though not in name. It is true that he called the executive a "governor"
+and not a king, but the governor, so-called, was to serve for life and
+was given not only "a negative on all laws about to be passed," but even
+the execution of all duly enacted laws was in his discretion. The
+governor, with the consent of the Senate, was to make war, conclude all
+treaties, make all appointments, pardon all offences, with the full
+power through his negative of saying what laws should be passed and
+which enforced. Hamilton's governor would have been not dissimilar to
+Louis XIV, and could have said with him, "_L'etat, c'est moi_!" The
+Senate also served for life, and the only concession which Hamilton made
+to democracy was an elective house of representatives. Thinly veiled,
+his plan contemplated an elective king with greater powers than those of
+George III, an imitation House of Lords and a popular House of Commons
+with a limited tenure.
+
+Hamilton's plan was never taken seriously and, so far as the records
+show, was never afterwards considered. His admirers have given great
+praise to his work in the federal convention. His real contribution lay
+in the fact that when the Constitution was finally drafted and offered
+to the people, while he regarded it as a "wretched makeshift," to use
+his own expression, yet he was broad and patriotic enough to surrender
+his own views and advocate the adoption of the Constitution. In so
+doing, he fought a valorous fight, secured the acquiescence of the State
+of New York, and without its ratification the Constitution would never
+have been adopted. Hamilton later thought better of the Constitution,
+and its successful beginning is due in large measure to his genius for
+constructive administration.
+
+As the debate proceeded, the crisis precipitated by the seemingly
+insoluble differences between the great and little States became more
+acute. The smaller States contended that the convention was
+transgressing its powers, and they demanded that the credentials of the
+various members be read. In this there was technical accuracy, for the
+delegates had been appointed to revise the Articles of Confederation and
+not to adopt a new Constitution. A majority of the convention, however,
+insisted upon the convention proceeding with the consideration of a new
+Constitution, and their views prevailed. It speaks well for the honour
+of the delegates that although their differences became so acute as to
+lead at times to bitter expressions, neither side divulged them to the
+outside public. The smaller States could easily have ended the
+convention by an appeal to public opinion, which was not then prepared
+for a "consolidated union," but they were loyal enough to fight out
+their quarrels within the walls of the convention hall.
+
+At times the debate became bitter in the extreme. James Wilson, a
+delegate of Pennsylvania and a Scotchman by birth and education, turning
+to the representatives of the little States, passionately said:
+
+    "Will you abandon a country to which you are bound by so many strong
+    and enduring ties? Should the event happen, it will neither stagger
+    my sentiments nor duty. If the minority of the people refuse to
+    coalesce with the majority on just and proper principles, if a
+    separation must take place, it could never happen on better
+    grounds."
+
+He referred to the demand of the larger States that representation
+should be proportioned to the population. To this Bedford, of Delaware,
+as heatedly replied;
+
+    "We have been told with a dictatorial air that this is the last
+    moment for a fair trial in favour of good government. It will be the
+    last, indeed, if the propositions reported by the committee go forth
+    to the people. The large States dare not dissolve the convention. If
+    they do, the small ones will find some foreign ally of more honour
+    and good faith, who will take them by the hand and do them justice."
+
+Finally, the smaller States gave their ultimatum to the larger States
+that unless representation in both branches of the proposed legislature
+should be on the basis of equality--each State, whether large or small,
+having one vote--they would forthwith leave the convention. An
+eye-witness says that, at that moment, Washington, who was in the chair,
+gave old Doctor Franklin a significant look. Franklin arose and moved an
+adjournment for forty-eight hours, with the understanding that the
+delegates should confer with those with whom they disagreed rather than
+with those with whom they agreed.
+
+A recess was taken, and when the convention re-convened on July 2, a
+vote was taken as to equality of representation in the Senate and
+resulted in a tie vote. It was then decided to appoint a committee of
+eleven, one from each State, to consider the question, and this
+committee reported three days later, on July 5, in favour of
+proportionate representation in the House and equal representation in
+the Senate. This suggestion, which finally saved the situation, was due
+to that wise old utilitarian philosopher, Franklin. Again, a vehement
+and passionate debate followed. Vague references were made to the sword
+as the only method of solving the difference.
+
+On July 9 the committee again reported, maintaining the principle of
+their recommendation, while modifying its details, and the debate then
+turned upon the question to what extent the negro slaves should count in
+estimating population for the purposes of proportionate representation
+in the lower House. Various suggestions were made to base representation
+upon wealth or taxation and not upon population. For several days the
+debate lasted during very heated weather, but on the night of July 12
+the temperature dropped and with it the emotional temperature of the
+delegates.
+
+Some days previous, namely, June 28, when the debates were becoming so
+bitter that it seemed unlikely that the convention could continue,
+Doctor Franklin, erroneously supposed by many to be an atheist, made
+the following solemn and beautiful appeal to their better natures. He
+said:
+
+    "The small progress we have made after four or five weeks' close
+    attendance and continual reasonings with each other--our different
+    sentiments on almost every question, several of the last producing
+    as many noes as ayes, is, methinks, a melancholy proof of the
+    imperfection of the human understanding. We indeed seem to feel our
+    own want of political wisdom, since we have been running about in
+    search of it. We have gone back to ancient history for models of
+    government, and examined the different forms of those Republics
+    which, having been formed with the seeds of their own dissolution,
+    now no longer exist. And we have viewed modern States all around
+    Europe, but find none of their constitutions suitable to our
+    circumstances.
+
+    "In this situation of this Assembly, groping as it were in the dark
+    to find political truth, and scarce able to distinguish it when
+    presented to us, how has it happened, sir, that we have not hitherto
+    once thought of humbly applying to the Father of Lights to
+    illuminate our understandings?... And have we now forgotten that
+    powerful Friend or do we imagine that we no longer need His
+    assistance? I have lived, sir, a long time, and the longer I live,
+    the more convincing proofs I see of this truth: That _God governs in
+    the affairs of men_. And if a sparrow cannot fall to the ground
+    without His notice, is it probable that an empire can rise without
+    His aid? We have been assured, sir, in the sacred writings, that
+    'except the Lord build the House they labour in vain that build it.'
+    I firmly believe this; and I also believe that without His
+    concurring aid we shall succeed in this political building no better
+    than the builders of Babel. We shall be divided by our little
+    partial local interests; our projects will be confounded, and we
+    ourselves shall become a reproach and byword down to future ages.
+    And what is worse, mankind may hereafter from this unfortunate
+    instance, despair of establishing governments by human wisdom and
+    leave it to chance, war, and conquest.
+
+    "I therefore beg leave to move that henceforth prayers imploring the
+    assistance of Heaven, and its blessings on our deliberations, be
+    held in this Assembly every morning before we proceed to business,
+    and that one or more of the clergy of this city be requested to
+    officiate in that service."
+
+It may surprise my audience to know the sequel. The resolution was voted
+down, partly on the ground that if it became known to the public that
+the convention had finally resorted to prayers it might cause undue
+alarm, but also because the convention was by that time so low in funds
+that, as one of the members said, it did not have enough money to pay a
+clergyman his fees for the service. I suspect that their controlling
+reason was their indisposition to break their self-imposed rule of
+secrecy by contact with the outer world until their work was completed.
+Perhaps they thought that "God helps those who help themselves."
+
+On July 16 the compromise was finally adopted of recognizing the claims
+of the larger States to proportionate representation in the House of
+Representatives, and recognizing the claims of the smaller States by
+according to them equal representation in the Senate. This great result
+was not effected without the first break in the convention, for the
+delegates from New York left in disgust and never returned, with the
+exception of Hamilton, who occasionally attended subsequent sessions.
+Such was the great concession that was made to secure the Constitution;
+and the only respect in which the Constitution to-day cannot be amended
+is that by express provision the equality of representation in the
+Senate shall never be disturbed. Thus it is that to-day some States,
+which have less population than some of the wards in the city of New
+York, have as many votes in the Senate as the great State of New York.
+It is unquestionably a palpable negation of majority rule, for as no
+measure can become a law without the concurrence of the Senate--now
+numbering ninety-six Senators--a combination of the little States, whoso
+aggregate population is not a fifth of the American people, can defeat
+the will of the remaining four-fifths. Pennsylvania and New York, with
+nearly one-sixth of the entire population of the United States, have
+only four votes in ninety-six votes in the Senate.
+
+Fortunately, political alignments have rarely been between the greater
+and the smaller States exclusively. Their equality in the Senate was a
+big price to pay for the Union, but, as the event has shown, not too
+great.
+
+The convention next turned its attention to the Executive and the manner
+of its selection, and upon this point there was the widest contrariety
+of view, but, fortunately, without the acute feeling that the relative
+power of the States had occasioned.
+
+Then the judiciary article was taken up, and there was much earnest
+discussion as to whether the new Constitution should embody the French
+idea of giving to the judiciary, in conjunction with the Executive, a
+revisory power over legislation. Three times the convention voted upon
+this dangerous proposition, and on one occasion it was only defeated by
+a single vote. Fortunately, the good sense of the convention rejected a
+proposition, that had caused in France constant conflicts between the
+Executive and the Judiciary, by substituting the right of the President
+to veto congressional legislation, with the right of Congress, by a
+two-thirds vote of each House, to override the veto, and secondly by an
+implied power in the Judiciary to annul Congressional or State
+legislation, not on the grounds of policy, but on the sole ground of
+inconsistency with the paramount law of the Constitution. In this
+adjustment, the influence of Montesquieu was evident.
+
+These and many practical details had resulted in an expansion of the
+fifteen proposals of the Virginia plan to twenty-three.
+
+Having thus determined the general principles that should guide them in
+their labours, the convention, on July 26 appointed a Committee on
+Detail to embody these propositions in the formal draft of a
+Constitution and adjourned until August 6 to await its report. That
+report, when finally completed, covered seven folio pages, and was found
+to consist of a Preamble and twenty-three Articles, embodying
+forty-three sections. The draft did not slavishly follow the Virginia
+propositions, for the committee embodied some valuable suggestions which
+had occurred to them in their deliberations. Nevertheless, it
+substantially put the Virginia plan into a workable plan which proved to
+be the Constitution of the United States in embryo.
+
+When the committee on detail had made its report on August 6, the
+convention proceeded for over a month to debate it with the most minute
+care. Every day for five weeks, for five hours each day, the members
+studied and debated with meticulous care every sentence of the proposed
+Constitution. Time does not suffice even for the barest statement of the
+many interesting questions which were thus discussed, but they nearly
+ran the whole gamut of constitutional government. Many fanciful ideas
+were suggested but with unvarying good sense they were rejected. Some of
+the results were, under the circumstances, curious. For example,
+although it was a convention of comparatively young men, and although
+the convention could have taken into account the many successful young
+men in public life in Europe--as, for example, William Pitt--they put a
+disqualification upon age by providing that a Representative must be
+twenty-five years of age, a Senator thirty years of age, and a President
+thirty-five years of age. When it was suggested that young men could
+learn by admission to public life, the sententious reply was made that,
+while they could, they ought not to have their education at the public
+expense.
+
+The debates proceeded, however, in better temper, and almost the only
+question that again gave rise to passionate argument was that of
+slavery. The extreme Southern States declared that they would never
+accept the new plan "except the right to import slaves be untouched."
+This question was finally compromised by agreeing that the importation
+of slaves should end after the year 1808. It however left the slave
+population then existing in a state of bondage, and for this necessary
+compromise the nation seventy-five years later was to pay dearly by one
+of the most destructive civil wars in the annals of mankind.
+
+August was now drawing to a close. The convention had been in session
+for more than three months. Of its work the public knew nothing, and
+this notwithstanding the acute interest which the American people, not
+merely facing the peril of anarchy, but actually suffering from it, must
+have taken in the convention. Its vital importance was not
+under-estimated. While its builders, like all master builders, did
+"build better than they knew," yet it cannot be said that they
+under-estimated the importance of their labours. As one of their number,
+Gouveneur Morris said: "The whole human race will be affected by the
+proceedings of this convention." After it adjourned one of its greatest
+participants, James Wilson, of Pennsylvania, said:
+
+    "After the lapse of six thousand years since the creation of the
+    world, America now presents the first instance of a people assembled
+    to say deliberately and calmly and to decide leisurely and peaceably
+    on the form of government by which they will bind themselves and
+    their posterity."
+
+In the absence of any authentic information, the rumour spread through
+the colonies that the convention was about to reconstitute a monarchy by
+inviting the second son of George III, the Bishop of Osnaburg, to be
+King of the United States; and these rumours became so persistent as to
+evoke from the silent convention a semi-official denial. There is some
+reason to believe that a minority of the convention did see in the
+restoration of a constitutional monarchy the only solution of the
+problem.
+
+On September 8 the committee had finally considered and, after
+modifications, approved the draft of the Committee on Detail, and a new
+committee was thereupon appointed "to revise the style of and arrange
+the articles that had been agreed to by the House." This committee was
+one of exceptional strength. There were Dr. William Samuel Johnson, a
+graduate of Oxford and a friend of his great namesake, Samuel Johnson;
+Alexander Hamilton, Gouveneur Morris, a brilliant mind with an unusual
+gift for lucid expression; James Madison, a true scholar in politics,
+and Rufus King, an orator who, in the inflated language of the day, "was
+ranked among the luminaries of the present age."
+
+The convention then adjourned to await the final revision of the draft
+by the Committee on Style.
+
+On September 12 the committee reported. While it is not certain, it is
+believed that its work was largely that of Gouveneur Morris.
+
+September 13 the printed copies of the report of the Committee on Style
+were ready, and three more days were spent by the convention in
+carefully comparing each article and section of this final draft.
+
+On September 15 the work of drafting the Constitution was regarded as
+ended, and it was adopted and ordered to be engrossed for signing.
+
+It may be interesting at this point to give the result of their labours
+as measured in words, and if the framers of the Constitution deserve the
+plaudits of posterity in no other respect they do in the remarkable
+self-restraint which those results revealed.
+
+The convention had been in session for 81 continuous days. Probably
+they had consumed over 300 hours in debate. If their debates had been
+fully reported, they would probably have filled at least fifty volumes,
+and yet the net result of their labours consisted of about 4,000 words,
+89 sentences, and about 140 distinct provisions. As the late Lord Bryce,
+speaking in this age of unbridled expression, both oral and printed, so
+well has said:
+
+    "The Constitution of the United States, including the amendments,
+    may be read aloud in twenty-three minutes. It is about half as long
+    as Saint Paul's Epistle to the Corinthians, and one-fourth as long
+    as the Irish Land Act of 1881. History knows few instruments which
+    in so few words lay down equally momentous rules on a vast range of
+    matters of the highest importance and complexity."
+
+Even including the nineteen amendments, the Constitution, after one
+hundred and thirty-five years of development, does not exceed 7,000
+words. What admirable self-restraint! Possibly single opinions of the
+Supreme Court could be cited which are as long as the whole document of
+which they are interpreting a single phrase. This does not argue that
+the Constitution is an obscure document, for it would be difficult to
+cite any political document in the annals of mankind that was so simple
+and lucid in expression. There is nothing Johnsonese about its style.
+Every word is a word of plain speech, the ordinary meaning of which even
+the man in the street knows. No tautology is to be found and no attempt
+at ornate expression. It is a model of simplicity, and as it flows
+through the reaches of history it will always excite the admiration of
+those who love clarity and not rhetorical excesses. One can say of it as
+Horace said of his favourite Spring:
+
+  _O, fons Bandusiae, splendidior vitro.
+  Dulce digne mero, non sine floribus_.
+
+If I be asked why, if this be true, it has required many lengthy
+opinions of the Supreme Court in the 256 volumes of its Reports to
+interpret its meaning, the answer is that, as with the simple sayings of
+the great Galilean, whose words have likewise been the subject of
+unending commentary, the question is not one of clarity but of
+adaptation of the meaning to the ever-changing conditions of human life.
+Moreover, as with the sayings of the Master or the unequalled verse of
+Shakespeare, questions of construction are more due to the commentators
+than to the text itself.
+
+On September 17 the convention met for the last time. The document was
+engrossed and laid before the members for signature. Of the fifty-five
+members who had attended, only thirty-nine remained. Of those, a number
+were unwilling to sign as individuals. While the members had not been
+unconscious of the magnitude of their labours, they were quite
+insensible of the magnitude of their achievement. Few there were of the
+convention who were enthusiastic about this result. Indeed, as the
+document was ready for signature, it became a grave question whether the
+remnant which remained had sufficient faith in their own work to
+subscribe their names, and if they failed to do so its adoption by the
+people would have been impossible. It was then that Doctor Franklin
+rendered one of the last and greatest services of his life. With
+ingratiating wit and with all the impressiveness that his distinguished
+career inspired, Franklin thus spoke:
+
+    "I confess that there are several parts of this Constitution which I
+    do not at present approve, but I am not sure I shall never approve
+    them. For having lived long I have experienced many instances of
+    being obliged by better information or fuller consideration, to
+    change opinions even on important subjects, which I once thought
+    right, but found to be otherwise. It is therefore that the older I
+    grow, the more apt I am to doubt my own judgment and to pay more
+    respect to the judgment of others. Most men indeed as well as most
+    sects in religion think themselves in possession of all truth, and
+    that wherever others differ from them it is so far error. Steele, a
+    Protestant, in a dedication tells the Pope that the only difference
+    between our Churches in their opinions of the certainty of their
+    doctrines is, the Church of Rome is infallible and the Church of
+    England is never in the wrong. But though many private persons think
+    almost as highly of their own infallibility as of that of their
+    sect, few express it so naturally as a certain French lady, who in a
+    dispute with her sister, said: 'I don't know how it happens, sister,
+    but I meet with nobody but myself that's always in the right.'--_Il
+    n'y a que moi qui a toujours raison_.
+
+    "In these sentiments, sir, I agree to this Constitution with all
+    its faults, if they are such; because I think a general government
+    necessary for us, and there is no form of government but what may be
+    a blessing to the people, if well administered, and I believe
+    further that this is likely to be well administered for a course of
+    years, and can only end in despotism as other forms have done before
+    it, when the people shall become so corrupted as to need despotic
+    government, being incapable of any other. I doubt, too, whether any
+    other convention we can obtain may be able to make a better
+    Constitution. For when you assemble a number of men to have the
+    advantage of their joint wisdom you inevitably assemble with those
+    men all their prejudices, their passions, their errors of opinion,
+    their local interests, and their selfish views. From such an
+    assembly can a perfect production be expected? It therefore
+    astonishes me, sir, to find this system approaching so near to
+    perfection as it does.... Thus, I consent, sir, to this Constitution
+    because I expect no better, and because I am not sure that it is not
+    the best. The opinions I have had of its errors I sacrifice to the
+    public good, I have never whispered a syllable of them abroad.
+    Within these walls they were born and here they shall die. If every
+    one of us in returning to our constituents were to report the
+    objections he has had to it and endeavour to gain partisans in
+    support of them, we might prevent its being generally received, and
+    thereby lost all the salutary effects and great advantages resulting
+    naturally in our favour among foreign nations as well as among
+    ourselves from our real or apparent unanimity.
+
+    "On the whole, sir, I cannot help expressing a wish that every
+    member of the convention who may still have objections to it, would
+    with me, on this occasion doubt a little of his own
+    infallibility--and to make manifest our unanimity, put his name to
+    this instrument."
+
+Truly this spirit of Doctor Franklin could be profitably invoked in this
+day and generation, when nations are so intolerant of the ideas of other
+nations.
+
+As the members, moved by Franklin's humorous and yet moving appeal, came
+forward to subscribe their names, Franklin drew the attention of some of
+the members to the fact that on the back of the President's chair was
+the half disk of a sun, and, with his love of metaphor, he said that
+painters had often found it difficult to distinguish in their art a
+rising from a setting sun. He then prophetically added:
+
+    "I have often and often in the course of the sessions and the
+    vicissitudes of my hopes and fears in its issues, looked at that
+    behind the President without being able to tell whether it was
+    rising or setting. But now at length I have the happiness to know
+    that it is a rising and not a setting sun."
+
+Time has verified the genial doctor's prediction. The career of the new
+nation thus formed has hitherto been a rising and not a setting sun. He
+had in his sixty years of conspicuously useful citizenship--and perhaps
+no nation ever had a more untiring and unselfish servant--done more than
+any American to develop the American Commonwealth, but like Moses, he
+was destined to see the promised land only from afar, for the new
+Government had hardly been inaugurated, before Franklin died, as full of
+years as honours. Prophetic as was his vision, he could never have
+anticipated the reality of to-day, for this nation, thus deliberately
+formed in the light of reason and without blood or passion, is to-day,
+by common consent, one of the greatest and, I trust I may add, one of
+the noblest republics of all time.
+
+
+
+
+_III. The Political Philosophy of the Constitution_
+
+
+In my last address I left Doctor Franklin predicting to the discouraged
+remnant of the constitutional convention that the nation then formed
+would be a "rising sun" in the constellation of the nations. The sun,
+however, was destined to rise through a bank of dark and murky clouds,
+for the Constitution could not take effect until it was ratified by nine
+of the thirteen States; and when it was submitted to the people, who
+selected State conventions for the purpose of ratifying or rejecting the
+proposed plan of government, a bitter controversy at once ensued between
+two political parties, then in process of formation, one called the
+Constitution ratified without controversy. In the remaining ten the
+struggle was long and arduous, and nearly a year passed before the
+requisite nine States gave their assent. Two of the States refused to
+become parts of the new nation, even after it began, and three years
+passed before the thirteen States were re-united under the Constitution.
+
+It could not have been ratified had there not been an assurance that
+there would be immediate amendments to provide a Bill of Rights to
+safeguard the individual. Thus came into existence the first ten
+amendments to the Constitution, with their perpetual guaranty of the
+fundamental rights of religion, freedom of speech and of the Press, the
+right of assemblage, the immunity from unreasonable searches and
+seizures, the right of trial by jury, and similar guarantees of
+fundamental individual rights.
+
+Distrustful as the American people were of the new Constitution, they
+yet had the political sagacity to prefer its imperfections, whatever
+they imagined them to be, to the mad spirit of innovation; and in order
+that the great instrument should not, through the excesses of party
+passion or the temporary caprices of fleeting generations, speedily
+become a mere "scrap of paper" they very wisely provided that no
+amendment should, in the future, be made unless it was proposed by at
+least two-thirds of the Senate and the House of Representatives and
+ratified by three-fourths of the States through their legislatures or
+through special conventions. This was only one of many striking
+negations of the principle of majority rule. As a result of this
+provision, if we count the first ten amendments as virtually part of the
+original document, only nine amendments have been adopted in 185 years,
+and of these, excepting the amendments which ended slavery as the result
+of the Civil War, only the last three, passed in recent years partly
+through the relaxing influence of the world war, mark a serious
+departure from the basic principles of the Constitution.
+
+This stability is the more remarkable when we recall the profound and
+revolutionary change that has taken place in the social life of man
+since the Constitution was adopted. It was framed at the very end of the
+pastoral-agricultural age of humanity. The industrial revolution, which
+has more profoundly affected man in the last century and a half than all
+the changes which had theretofore taken place in the life of man since
+the cave-dweller, was only then beginning. Measured in terms of
+mechanical power, men when the Constitution was formed were Lilliputians
+as compared with the Brobdingnagians of our day, when man outflies the
+eagle, outswims the fish, and by his conquest and utilization of the
+invisible forces of nature has become the superman; and yet the
+Constitution of 1787 is, in most of its essential principles, still the
+Constitution of 1922. This surely marks it as a marvel in statecraft
+and can only be explained by the fact that the Constitution was
+developed by a people who, as "children brave and free of the great
+mother-tongue," had a real genius for self-government and its essential
+element, the spirit of self-restraint.
+
+While it is true that the _text_ of the instrument has suffered almost
+as little change as the Nicene Creed, yet it would be manifest error to
+suggest that in its development by practical application the
+Constitution has not undergone great changes.
+
+The first and greatest of all its expounders, Chief Justice Marshall,
+said, in one of his greatest opinions, that the Constitution was--
+
+    "intended to endure for ages to come, and consequently to be
+    _adapted_ to the various crises of human affairs. To have prescribed
+    the means by which government should in all future times execute
+    its powers would have been to change entirely the character of the
+    instrument and to give it the properties of a legal code. It would
+    have been an unwise attempt to provide by immutable rules for
+    exigencies which, if foreseen at all, must have been foreseen dimly,
+    and can best be provided for as they occur."
+
+In this great purpose of enumerating rather than defining the powers of
+government its framers were supremely wise. While it was marvellously
+sagacious in what it provided, it was wise to the point of inspiration
+in what it left unprovided.
+
+Nothing is more admirable than the self-restraint of men who, venturing
+upon an untried experiment, and after debating for four months upon the
+principles of government, were content to embody their conclusions in
+not more than four thousand words. To this we owe the elasticity of the
+instrument. Its vitality is due to the fact that, by usage, judicial
+interpretation, and, when necessary, formal amendment, it can be thus
+adapted to the ever-accelerating changes of the most progressive age in
+history, and that a people have administered the Constitution who, in
+the process of such adaptation, have generally shown the same spirit of
+conservative self-restraint as did the men who framed it.
+
+The Constitution is neither, on the one hand, a Gibraltar rock, which
+wholly resists the ceaseless washing of time or circumstance, nor is it,
+on the other hand, a sandy beach, which is slowly destroyed by the
+erosion of the waves. It is rather to be likened to a floating dock,
+which, while firmly attached to its moorings, and not therefore the
+caprice of the waves, yet rises and falls with the tide of time and
+circumstance.
+
+While in its practical adaptation to this complex age the men who framed
+it, if they could "revisit the glimpses of the moon," would as little
+recognize their own handiwork as their own nation, yet they would still
+be able to find in successful operation the essential principles which
+they embodied in the document more than a century ago.
+
+Its success is also due to the fact that its framers were little
+influenced by the spirit of doctrinarianism. They were not empiricists,
+but very practical men. This is the more remarkable because they worked
+in a period of an emotional fermentation of human thought. The
+long-repressed intellect of man had broken into a violent eruption like
+that of a seemingly extinct volcano.
+
+From the middle of the eighteenth century until the end of the French
+Revolution the masses everywhere were influenced by the emotional, and
+at times hysterical, abstractions of the French encyclopedists; and that
+these had influenced thought in the American colonies is readily shown
+in the preamble of the Declaration of Independence, with its
+unqualified assertion of the equality of men and the absolute right of
+self-determination. The Declaration sought in its noble idealism to make
+the "world safe for democracy," but the Constitution attempted the
+greater task of making democracy safe for the world by inducing a people
+to impose upon themselves salutary restraints upon majority rule.
+
+Fortunately, the framers of the Constitution had learned a rude and
+terrible lesson in the anarchy that had followed the War of
+Independence. They were not so much concerned about the rights of man as
+about his duties, and their great purpose was to substitute for the
+visionary idealism of a rampant individualism the authority of law. Of
+the hysteria of that time, which was about to culminate in the French
+Revolution, there is no trace in the Constitution.
+
+They were less concerned about Rousseau's social contract than to
+restore law and order. Hard realities and not generous and impossible
+abstractions interested them. They had suffered grievously for more than
+ten years from misrule and had a distaste for mere phrase-making, of
+which they had had a satiety, for the Constitution, in which there is
+not a wasted word, is as cold and dry a document as a problem in
+mathematics or a manual of parliamentary law. Its mandates have the
+simplicity and directness of the Ten Commandments, and, like the
+Decalogue, it consists more of what shall not be done than what shall be
+done. In this freedom from empiricism and sturdy adherence to the
+realities of life, it can be profitably commended to all nations which
+may attempt a similar task.
+
+While the Constitution apparently only deals with the practical and
+essential details of government, yet underlying these simply but
+wonderfully phrased delegations of power is a broad and accurate
+political philosophy, which goes far to state the "law and the
+prophets" of free government.
+
+These essential principles of the Constitution may be briefly summarized
+as follows:
+
+
+
+1.
+
+
+_The first is representative government_.
+
+Nothing is more striking in the debates of the convention than the
+distrust of its members, with few exceptions, of what they called
+"democracy." By this term they meant the power of the people to
+legislate directly and without the intervention of chosen
+representatives. They believed that the utmost concession that could be
+safely made to democracy was the power to select suitable men to
+legislate for the common good, and nothing is more striking in the
+Constitution than the care with which they sought to remove the powers
+of legislation from the _direct_ action of the people. Nowhere in the
+instrument is there a suggestion of the initiative or referendum.
+
+Even an amendment to the Constitution could not be directly proposed by
+the people in the exercise of their residual power or adopted by them.
+As previously said, it could only be proposed by two-thirds of the House
+and the Senate, and then could only become effective, if ratified by
+three-fourths of the States, acting, not by a popular vote, but through
+their chosen representatives either in their legislatures or special
+conventions. Thus they denied the power of a majority to alter even the
+form of government. Moreover, they gave to the President the power to
+nullify laws passed by a majority of the House and Senate by his simple
+veto, and yet, fearful of an unqualified power of the President in this
+respect, they provided that the veto itself should be vetoed, if
+two-thirds of the Senate and House concurred in such action. Moreover,
+the great limitations of the Constitution, which forbid the majority, or
+even the whole body of the House and Senate, to pass laws either for
+want of authority or because they impair fundamental rights of
+individuals, are as emphatic a negation of an absolute democracy as can
+be found in any form of government.
+
+Measured by present-day conventions of democracy, the Constitution is an
+undemocratic document. The framers believed in representative
+government, to which they gave the name "Republicanism" as the
+antithesis to "democracy." The members of the Senate were to be selected
+by State legislatures, and the President himself was, as originally
+planned, to be selected by an electoral college similar to the College
+of Cardinals.
+
+The debates are full of utterances which explain this attitude of mind.
+Mr. Gerry said: "The evils we experience flow from the excesses of
+democracy. The people are the dupes of pretended patriots." Mr.
+Randolph, the author of the Virginia plan, observed that the general
+object of the Constitution was to provide a cure for the evils under
+which the United States laboured; that in tracing these evils to their
+origin every man had found it in the tribulation and follies of
+democracy; that some check, therefore, was to be sought for against this
+tendency of our Government.
+
+Alexander Hamilton remarked, on June 18, that--
+
+    "the members most tenacious of republicanism were as loud as any in
+    declaiming against the evils of democracy."
+
+He added:
+
+    "Give all the power to the many and they will oppress the few. Give
+    all the power to the few and they will oppress the many. Both ought,
+    therefore, to have the power that each may defend itself against the
+    other."
+
+Perhaps the attitude of the members is thus best expressed by James
+Madison, in the 10th of the Federalist papers:
+
+    "A pure democracy, by which I mean a State consisting of a small
+    number of citizens, who assemble and administer the government in
+    person, can admit of no cure for the mischiefs of faction. Such
+    democracies have ever been spectacles of turbulence and contention,
+    and have often been found incompatible with the personal security
+    and rights of property, and have generally been as short in their
+    lives as they have been violent in their deaths."
+
+Undoubtedly, the framers of the Constitution in thus limiting popular
+rule did not take sufficient account of the genius of an
+English-speaking people. A few of their number recognized this.
+Franklin, a self-made man, believed in democracy and doubted the
+efficacy of the Constitution unless it was, like a pyramid, broad-based
+upon the will of the people.
+
+Colonel Mason, of Virginia, who was also of the Jeffersonian school of
+political philosophy, said:
+
+    "Notwithstanding the oppression and injustice experienced among us
+    from democracy, the genius of the people is in favour of it, and the
+    genius of the people must be consulted."
+
+In this they were true prophets, for the American people have refused to
+limit democracy as narrowly and rigidly as the framers of the
+Constitution clearly intended. The most notable illustration of this is
+the selection of the President. It was never contemplated that the
+people should directly select the President, but that a chosen body of
+electors should, with careful deliberation, make this momentous choice.
+While, in form, the system persists to this day, from the very beginning
+the electors simply vote as the people who select them desire. It should
+here be noted that Thomas Jefferson, the great Democrat and draftsman of
+the Declaration of Independence, was not a member of the convention.
+During its sessions he was in France. He was instrumental in securing
+the first ten Amendments and the subsequent adaptation of the
+Constitution to meet the democratic instincts of the American people is
+largely due to his great leadership.
+
+Moreover, the spirit of representative government has greatly changed
+since the Constitution was adopted. The ideal of the earlier time was
+that so nobly expressed by Edmund Burke in his address to the electors
+of Bristol, for the framers believed that a representative held a
+judicial position of the most sacred character, and that he should vote
+as his judgment and conscience dictated without respect to the wishes of
+his constituents. To-day, and notably in the last half century, the
+contrary belief, due largely to Jefferson's political ideals, has so
+influenced American politics that the representatives of the people,
+either in the legislature or the executive departments of the
+government, are considered by the masses as only the mouthpieces of the
+people who select them, and to ignore their wishes is regarded as
+virtually a betrayal of a trust and the negation of democracy.
+
+For this change in attitude there has been much justification, for in my
+country, as elsewhere, the people do not always select their best men as
+representatives, and, with the imperfections of human nature, there has
+been so much of ignorance and, at times, venality, that the instinct of
+the people is to take the conduct of affairs into their own hands. On
+the other hand, this change of attitude has led, in many instances, to
+government by organized minorities, for, with the division of the masses
+into political parties, it is easy for an organized minority to hold the
+balance of power, and thus impress its will upon majorities. Time may
+yet vindicate the theory of the framers that the limit of democracy is
+the selection of true and tried representatives.
+
+
+
+2.
+
+
+_The second and most novel principle of the Constitution is its dual
+form of Government._
+
+This did constitute a unique contribution to the science of politics.
+This was early recognized by de Tocqueville, one of the most acute
+students of the Constitution, who said that it was based "upon a wholly,
+novel theory, which may be considered a great discovery in modern
+political science."
+
+Previous to the Constitution it had not been thought possible to divide
+sovereignty, or at least to have two different sovereignties moving as
+planets in the same orbit. Therefore, all previous federated governments
+had been based upon the plan that a league could only effect its will
+through the constituent States and that the citizens in these States
+owed no direct allegiance to the league, but only to the States of which
+they were members. The Constitution, however, developed the idea of a
+dual citizenship. While the people remained citizens of their respective
+States in the sphere of government which was reserved to the States, yet
+they directly became citizens of the central government, and, as such,
+ceased to be citizens of the several States in the sphere of government
+delegated to the central power; and this allegiance was enforced by the
+direct action of the central government on the citizens as individuals.
+Thus has been developed one of the most intricately complex governmental
+systems in the world.
+
+At the time of the adoption of the Constitution this division of
+jurisdiction was quite feasible, for, geographically, the various States
+were widely separated, and the lack of economic contact made it easy for
+each government to function without serious conflict. The framers,
+however, did not sufficiently reckon with the mechanical changes in
+society that were then beginning. They did not anticipate, and could not
+have anticipated, the centripetal influences of steam and electricity
+which have woven the American people into an indissoluble unit for
+commercial and many other purposes. As a result many laws of the Federal
+Government, in their incidences in this complex age, directly impinge
+upon rights of the State governments, and _vice versa_, and the
+practical application of the Constitution has required a very subtle
+adaptation of a form of government which was enacted in a primitive age
+to a form of government of a complex age.
+
+Take, for example, the power over commerce. According to the
+Constitution, the Federal Government had plenary power over foreign
+commerce and commerce _between_ the States, but the power over commerce
+_within_ a State was reserved to State governments. This presupposed the
+power of Government to divide commerce into two water-tight
+compartments, or, at least, to regard the two spheres of power as
+parallel lines that would never meet; whereas with the coming of the
+railroad, steamship and the telegraph commerce has become so unified
+that the parallel lines have become lines of interlacing zigzags. To
+adapt the commerce clause of the Constitution to these changed
+conditions has required, in the highest degree, the constructive genius
+of the Supreme Court of the United States, and, in a series of very
+remarkable decisions, which are contained in 256 volumes of the official
+reports, that great tribunal has tried to draw a line between
+inter-State and domestic commerce as nearly to the original plans of the
+framers as it was possible; but obviously there has been so much
+adaptation to make this possible that if Washington, Franklin, Madison
+and Hamilton could revisit the nation they created they would not
+recognize their own handiwork.
+
+For the same reason, the dual system of government has been profoundly
+modified by the great elemental forces of our mechanical age, so that
+the scales, which try to hold in nice equipoise the Federal Government
+on the one hand and the States on the other, have been greatly
+disturbed. Originally, the States were the powerful political entities,
+and the central government a mere agent for certain specific purposes;
+but, in the development of the Constitution, the nation has naturally
+become of overshadowing importance, while the States have relatively
+steadily diminished in power and prestige.
+
+These inevitable tendencies in American politics are called
+"centralization," and while for nearly a century a great political party
+bitterly contested its steady progress, due to the centripetal
+influences above indicated, yet the contest was long since abandoned as
+a hopeless one, and the struggle to-day is rather to keep, so far as
+possible, the inevitable tendency measurably in check.
+
+Nevertheless, it would be erroneous to suggest that the dual system of
+government is a failure. It still endures in providing a large measure
+of authority to the States in their purely domestic concerns, and, in a
+country that extends from the Atlantic to the Pacific, and from the
+Lakes to the Gulf, whose northern border is not very far from the Arctic
+Circle, and whose southern border is not many degrees from the Equator,
+there are such differences in the habits, conventions, and ideals of the
+people that without this dual form of government the Constitution would
+long since have broken down. It is not too much to say that the success
+with which the framers of the Constitution reconciled national supremacy
+and efficiency with local self-government is one of the great
+achievements in the history of mankind.
+
+
+
+3.
+
+
+_The third principle was the guaranty of individual liberty through
+constitutional limitations._
+
+This marked another great contribution of America to the science of
+government. In all previous government building, the State was regarded
+as a sovereign, which could grant to individuals or classes, out of its
+plenary power, certain privileges or exemptions, which were called
+"liberties." Thus the liberties which the barons wrung from King John at
+Runnymede were virtually exemptions from the power of government. Our
+fathers did not believe in the sovereignty of the State in the sense of
+absolute power, nor did they believe in the sovereignty of the people in
+that sense. The word "sovereignty" will not be found in the Constitution
+or the Declaration of Independence. They believed that each individual,
+as a responsible moral being, had certain "inalienable rights" which
+neither the State nor the people could rightfully take from him.
+
+This conception of individualism, enforced in courts of law against
+executives and legislatures, was wholly new and is the distinguishing
+characteristic of American constitutionalism. As to such reserved
+rights, guaranteed by Constitutional limitations, and largely by the
+first ten amendments to the Constitution, a man, by virtue of his
+inherent and God-given dignity as a human soul, has rights, such as
+freedom of the Press, liberty of speech, property rights, and religious
+freedom, which even one hundred millions of people cannot rightfully
+take from him, without amending the Constitution. The framers did not
+believe that the oil of anointing that was supposed to sanctify the
+monarch and give him infallibility had fallen upon the "multitudinous
+tongue" of the people to give it either infallibility or omnipotence.
+They believed in individualism. They were animated by a sleepless
+jealousy of governmental power. They believed that the greater such
+power, the greater the danger of its abuse. They felt that the
+individual could generally best work out his own salvation, and that his
+constant prayer to Government was that of Diogenes to Alexander: "Keep
+out of my sunlight." The worth and dignity of the human soul, the free
+competition of man and man, the nobility of labour, the right to work,
+free from the tyranny of state or class, this was their gospel.
+Socialism was to them abhorrent.
+
+This theory of government gave a new dignity to manhood. It said to the
+State: "There is a limit to your power. Thus far and no further, and
+here shall thy proud waves be stayed."
+
+
+
+4.
+
+
+_Closely allied to this doctrine of limited governmental powers, even by
+a majority, is the fourth principle of an independent judiciary_.
+
+It is the balance wheel of the Constitution, and to function it must be
+beyond the possibility of attack and destruction. My country was founded
+upon the rock of property rights and the sanctity of contracts. Both the
+nation and the several States are forbidden to impair the obligation of
+contracts, or take away life, liberty, or property "without due process
+of law." The guarantee is as old as Magna Charta; for "due process of
+law" is but a paraphrase of "the law of the land," without which no
+freeman could be deprived of his liberties or possessions.
+
+"Due process of law" means that there are certain fundamental principles
+of liberty, not defined or even enumerated in the Constitution, but
+having their sanction in the free and enlightened conscience of just
+men, and that no man can be deprived of life, liberty, or property,
+except in conformity with these fundamental decencies of liberty. To
+protect these even against the will of a majority, however large, the
+judiciary was given unprecedented powers. It threw about the individual
+the solemn circle of the law. It made the judiciary the final conscience
+of the nation. Your nation cherishes the same primal verities of
+liberty, but with you, the people in Parliament, is the final judge. We,
+however, are not content that a majority of the Legislature shall
+override inviolable individual rights, about which the judiciary is
+empowered to throw the solemn circle of the law.
+
+This august power has won the admiration of the world, and by many is
+regarded as a novel contribution to the science of government. The idea,
+however, was not wholly novel. As previously shown, four Chief Justices
+of England had declared that an Act of Parliament, if against common
+right and reason, could be treated as null and void; while in France the
+power of the judiciary to refuse efficacy to a law, unless sanctioned by
+the judiciary, had been the cause of a long struggle for at least three
+centuries between the French monarch and the courts of France. However,
+in England the doctrine of the common law yielded to the later doctrine
+of the omnipotence of Parliament, while in France the revisory power of
+the judiciary was terminated by the French Revolution.
+
+The United States, however, embodied it in its form of government and
+thus made the judiciary, and especially the Supreme Court, the balance
+wheel of the Constitution. Without such power the Constitution could
+never have lasted, for neither executive officers nor legislatures are
+good judges of the extent of their own powers.
+
+Nothing more strikingly shows the spirit of unity which the Constitution
+brought into being than the unbroken success with which the Supreme
+Court has discharged this difficult and most delicate duty. The
+President is the Commander-in-Chief of the Army and the Navy and can
+call them to his aid. The legislature has almost unlimited power through
+its control of the public purse. The States have their power reinforced
+by armed forces, and some of them are as great in population and
+resources as many of the nations of Europe. The Supreme Court, however,
+has only one officer to execute its decrees, called the United States
+Marshal; and yet, without sword or purse, and with only a high sheriff
+to enforce its mandates, when the Supreme Court says to a President or
+to a Congress or to the authorities of a great--and, in some respects,
+sovereign--State that they must do this or must refrain from doing that,
+the mandate is at once obeyed. Here, indeed, is the American ideal of "a
+government of laws and not of men" most strikingly realized; and if the
+American Constitution, as formulated and developed, had done nothing
+else than to establish in this manner the supremacy of law, even as
+against the overwhelming sentiment of the people, it would have
+justified the well-known encomium of Mr. Gladstone.
+
+It must be added, however, that in one respect this function of the
+judiciary has had an unfortunate effect in lessening rather than
+developing in the people the sense of constitutional morality. In your
+country the power of Parliament is omnipotent, and yet in its
+legislation it voluntarily observes these great fundamental decencies
+of liberty which in the American Constitution are protected by formal
+guarantees. This can only be true because either your representatives in
+Parliament have a deep sense of constitutional morality, or that the
+constituencies which select them have so much sense of constitutional
+justice that their representatives dare not disregard these fundamental
+decencies of liberty.
+
+In the United States, however, the confidence that the Supreme Court
+will itself protect these guaranties of liberty has led to a diminution
+of the sense of constitutional morality, both in the people and their
+representatives. It abates the vigilance which is said to be ever the
+price of liberty.
+
+Laws are passed which transgress the limitations of the Constitution
+without adequate discussion as to their unconstitutional character, for
+the reason that the determination of this fact is erroneously supposed
+to be the exclusive function of the judiciary.
+
+The judiciary, contrary to the common supposition, has no plenary power
+to nullify unconstitutional laws. It can only do so when there is an
+irreconcilable and indubitable repugnancy between a law and the
+Constitution; but obviously laws can be passed from motives that are
+anti-constitutional, and there is a wide sphere of political discretion
+in which many acts can be done which, while politically
+anti-constitutional, are not juridically unconstitutional. For this
+reason, the undue dependence upon the judiciary to nullify every law
+which either in form, necessary operation, or motive transgresses the
+Constitution has so far lessened the vigilance of the people to protect
+their own Constitution as to lead to its serious impairment.
+
+
+
+5.
+
+
+_The fifth fundamental principle was a system of governmental checks and
+balances_.
+
+The founders of the Republic were not enamoured of power. As they viewed
+human history, the worst evils of government were due to excessive
+concentration of power, which like Othello's jealousy "makes the meat it
+feeds on."
+
+This system of checks and balances again illustrates that the
+Constitution is the great negation of unrestrained democracy. The
+framers believed that a people was best governed that was least
+governed. Therefore, their purpose was not so much to promote efficiency
+in legislation as to put a brake upon precipitate action.
+
+Time does not suffice to state the intricate system of checks and
+balances whereby the legislature acts as a check upon the executive and
+the executive upon the legislature, and the Supreme Court upon both.
+When the Republic was small, and its public affairs were few, this
+system of checks and balances worked admirably, but to-day, when the
+nation is one of the greatest in the world, and its public affairs are
+of the most important and complicated character, and often require
+speedy action, it may be questioned whether the system is not now an
+undue brake upon governmental efficiency, and does _not_ require some
+modification to ensure efficiency. Indeed, it is a serious question with
+many thoughtful Americans whether the growth of the United States has
+not put an excessive strain upon its governmental machinery.
+
+This system was in part due to the confident belief of the framers of
+the Constitution in the Montesquieu doctrine of the division of
+government into three independent departments--legislative, executive
+and judicial; but experience has shown how difficult it is to apply this
+doctrine in its literal rigidity. One result of the doctrine was the
+mistaken attempt to keep the legislative and the executive as far apart
+as possible. The Cabinet system of parliamentary government was not
+adopted. While the President can appear before Congress and express his
+views, his Cabinet is without such right. In practice, the gulf is
+bridged by constant contact between the Cabinet and the committees of
+Congress, but this does not wholly secure speedy and efficient
+co-operation between the two departments. As I speak, a movement is in
+progress, with the sanction of President Harding, to permit members of
+his Cabinet to appear in Congress and thus defend directly and in person
+the policies of the Executive.
+
+This separation of the two departments, which causes so much friction,
+has been emphasized by one feature of the Constitution which again marks
+its distrust of democracy, namely the fixed tenure of office. The
+Constitution did not intend that public officials should rise or fall
+with the fleeting caprices of a constituency. It preferred to give the
+President and the members of Congress a fixed term of office, and,
+however unpopular they might become temporarily, they should have the
+right and the opportunity to proceed even with unpopular policies, and
+thus challenge the final verdict of the people.
+
+If a parliamentary form of government, immediately responsive to
+current opinion as registered in elections, is the great desideratum,
+then the fixed tenure of offices is the vulnerable Achilles-heel of our
+form of government. In other countries the Executive cannot survive a
+vote of want of confidence by the legislature. In America, the
+President, who is merely the Executive of the legislative will,
+continues for his prescribed term, though he may have wholly lost the
+confidence of the representatives of the people in Congress. While this
+makes for stability in administration and keeps the ship of state on an
+even keel, yet it also leads to the fatalism of our democracy, and often
+the "native hue" of its resolution is thus "sicklied o'er with the pale
+cast of thought." Take a striking instance. I am confident that after
+the sinking of the _Lusitania_, the United States would have entered the
+world war, if President Wilson's tenure of power had then depended upon
+a vote of confidence.
+
+
+
+6.
+
+
+_The sixth fundamental principle is the joint power of the Senate and
+the Executive over the foreign relations of the Government_.
+
+I need not dwell at length upon this unique feature of our
+constitutional system, for since the Versailles Treaty, the world has
+become well acquainted with our peculiar system under which treaties are
+made and war is declared or terminated. Nothing, excepting the principle
+of local rule, was of deeper concern to the framers of the Constitution.
+When it was framed, it was the accepted principle of all other nations
+that the control of the foreign relations of the Government was the
+exclusive prerogative of the Executive. In your country the only
+limitation upon that power was the control of Parliament over the purse
+of the nation, and some of the great struggles in your history related
+to the attempt of the Crown to exact money to carry on the wars without
+a Parliament grant.
+
+The framers were unwilling to lodge any such power in the Executive,
+however great his powers in other respects. This was primarily due to
+the conception of the States that then prevailed. While they had created
+a central government for certain specified purposes, they yet regarded
+themselves as sovereign nations, and their representatives in the Senate
+were, in a sense, their ambassadors. They were as little inclined to
+permit the President of the United States to make treaties or declare
+war at will in their behalf as the European nations would be to-day to
+vest a similar authority in the League of Nations. It was, therefore,
+first proposed that the power to make treaties and appoint diplomatic
+representatives should be vested exclusively in the Senate, but as that
+body was not always in session, this plan was so far modified as to give
+the President, who is always acting, the power to _negotiate_ treaties
+"with the advice and consent of the Senate." As to making war, the
+framers were not willing to entrust the power even to the President and
+the Senators, and it was therefore expressly provided that only Congress
+could take this momentous step.
+
+Here, again, the theory of the Constitution was necessarily somewhat
+modified in practical administration, for under the power of nominating
+diplomatic representatives, negotiating treaties, and in general, of
+executing the laws of the nation, the principle was soon evolved that
+the conduct of foreign affairs was primarily the function of the
+President, with the limitation that the Senate must concur in diplomatic
+appointments and in the validity of treaties, and that only both Houses
+of Congress could jointly declare war. This cumbrous system necessarily
+required that the President in conducting the foreign relations of the
+Government should keep in touch with the Senate, and such was the
+accepted procedure throughout the history of the nation until President
+Wilson saw fit to ignore the Senate, even when the Senate had indicated
+its dissent in advance to some of his policies at the Versailles
+Conference.
+
+I suppose that since that conference no part of our constitutional
+system has caused more adverse comment in Europe than this system. It
+often handicaps the United States from taking a speedy and effectual
+part in international negotiations, although if the President and the
+Senate be in harmony and collaborate in this joint responsibility, there
+is no necessary reason why this should be so.
+
+I share the view of many Americans that this provision of the
+Constitution was wise and salutary, especially at this time, when the
+United States has taken such an important position in the councils of
+civilization. The President is a very powerful Executive, and his
+tenure, while short, is fixed. Generally he is elected by little more
+than a majority of the people, and sometimes through the curious
+workings of the electoral college system, he has been only the choice
+of a minority of the electorate. For these reasons, the framers of the
+Constitution were unwilling to vest in the President exclusively the
+immeasurable power of pledging the faith, man-power, and resources of
+the nation and of declaring war. The heterogeneous character of our
+population especially emphasizes the wisdom of this course, for it would
+be difficult, if not impossible, for an American President to make an
+offensive and defensive alliance with any nation or declare war against
+another nation without running counter to the racial interests and
+passions of a substantial part of the American nation. For better or
+worse, the United States has limited, but not destroyed, as the world
+war showed, its freedom to antagonize powerful nations from whose people
+it has drawn large numbers of its own citizenship. The domestic harmony
+of the nation requires that before the United States assumes treaty
+obligations or makes war such policy shall represent the largely
+preponderating sentiment of its people, and nothing could more
+effectually secure this end than to require the President, before making
+a treaty, to secure the assent of two-thirds of the Senate and a
+majority of both Houses of Congress before making war.
+
+While this may lead, as it has in recent years, to temporary and
+regrettable embarrassments, yet in the long run, it is not only better
+for the United States, but it is even to the best interests of other
+nations, for in this way they are safeguarded against the possible
+action of an Executive with whom racial instincts might still be very
+influential. In your country, where the Government of the day is subject
+to immediate dismissal for want of confidence, such power over foreign
+relations can be safely entrusted to a few men, but in the United
+States, with its fixed tenures of office, a President could pledge the
+faith and involve his nation in war against the interests and will of
+the people. Suppose the President had unlimited power over our foreign
+relations and that within the next ten years an American, whose parents
+were born in any European nation, was elected on purely domestic issues,
+he could, with his assured four years of power, bring about a new
+alignment of nations and shake the political equilibrium of the world.
+The Constitution wisely refused to grant such a power. Hence the
+provision for the concurrence of the legislative representatives of the
+nation. At all events, it constitutes a system which, as the last
+presidential election showed, the American people will not willingly
+forgo. It is true that this system makes it difficult for the United
+States to participate effectively in the main purpose of the League of
+Nations to enforce peace by joint action at Geneva, but to ask the
+United States to surrender a vital part of its constitutional system,
+upon which its domestic peace so largely depends, in order to promote
+the League, seems to me as unreasonable as it would be to ask your
+country to abolish the Crown, to which it is sincerely attached as a
+vital part of its system, as a contribution towards international
+co-operation. You would not surrender such an integral part of your
+system, and therefore it is not reasonable to expect a similar sacrifice
+on our part, even though the meritorious purposes of the League be
+freely recognized.
+
+I have thus summarized briefly and most inadequately some of the
+essential principles of the Constitution. I have only been able to
+suggest very impressionistically what they are and the lessons to be
+drawn from them. If I were able to deliver a dozen addresses on the
+subject in this historic Hall and with this indulgent audience I would
+not scratch even the surface. To understand the Constitution of the
+United States you must not only read the text but the thousands of
+opinions rendered in the last 130 years by the Supreme Court in its
+great task of interpreting this wonderful document. Few documents have
+been the subject of more extended commentaries. The four thousand words
+have been meticulously examined through intellectual microscopes in
+judicial opinions, textbooks, and other commentaries which are as "thick
+as autumnal leaves that strow the brooks in Vallombrosa."
+
+One can say of this document as Dr. Furness, in his variorum edition of
+_Hamlet_, says of the words of that character:
+
+    "No words by him let fall, no syllable by him uttered, but has been
+    caught up and pondered, as no words except those of Holy Writ."
+
+But what of its future and how long will the Constitution wholly resist
+the washing of time and circumstance? Lord Macaulay once ventured the
+prediction that the Constitution would prove unworkable as soon as there
+were no longer large areas of undeveloped land and when the United
+States became a nation of great cities. That period of development has
+arrived. In 1880 only 15 per cent. of the American population lived in
+the cities and the remainder were still on the farms. To-day over 52 per
+cent, are crowded in one hundred great cities. Lord Macaulay added:
+
+    "I believe America's fate is only deferred by physical causes.
+    Institutions purely democratic will sooner or later destroy liberty
+    or civilization, or both.... The American Constitution is all sail
+    and no anchor."
+
+In this last commentary Lord Macaulay was clearly mistaken. As I have
+shown, the Constitution is not "purely democratic." It is amazing that
+so great a mind should have so little understood that more than any
+other Constitution, that of America imposes powerful restraints on
+democracy. The experience of a century and a quarter has shown that
+while the anchor may at times drag, yet it measurably holds the ship of
+state to its ancient moorings. The American Constitution still remains
+in its essential principles and still enjoys not only the confidence but
+the affection of the great and varied people whom it rules. To the
+latter this remarkable achievement must be attributed rather than to any
+inherent strength in parchment or red seals, for in a democracy the
+living soul of any Constitution must be such belief of the people in its
+wisdom and justice. If it should perish to-morrow, it would yet have
+enjoyed a life and growth of which any nation or age might be justly
+proud. Moreover, it could claim with truth, if it finally perished, that
+it had been subjected to conditions for which it was never intended and
+that some of its essential principles had been ignored.
+
+The Constitution is something more than a written formula of
+government--it is a great spirit. It is a high and noble assertion,
+and, indeed, vindication, of the morality of government. It "renders
+unto Caesar [the political state] the things that are Caesar's," but in
+safeguarding the fundamental moral rights of the people, it "renders
+unto God the things that are God's."
+
+In concluding, I cannot refrain from again reminding you that this
+consummate work of statecraft was the work of the English-speaking race,
+and that your people can therefore justly share in the pride which it
+awakens. It is not only one of the great achievements of that _gens
+aeterna_, but also one of the great monuments of human progress. It
+illustrates the possibilities of true democracy in its best estate. When
+the moral anarchy out of which it was born is called to mind, it can be
+truly said that while "sown in weakness, it was raised in power."
+
+To the succeeding ages, it will be a flaming beacon, and everywhere men,
+who are confronted with the acute problems of this complex age, can
+take encouragement from the fact that a small and weak people, when
+confronted with similar problems, had the strength and will to impose
+restraint upon themselves by peacefully proclaiming in the simple words
+of the noble preamble to the Constitution:
+
+    "We, the people of the United States, in order to form a more
+    perfect union, establish justice, ensure domestic tranquillity,
+    provide for the common defence, promote the general welfare, and
+    secure the blessings of liberty to ourselves and our posterity, do
+    ordain and establish this Constitution for the United States of
+    America."
+
+Note the words "ordain and establish." They imply perpetuity. They make
+no provision for the secession of any State, even if it deems itself
+aggrieved by federal action. And yet the right to secede was urged for
+many years, but Lincoln completed the work of Washington, Franklin,
+Madison and Hamilton by establishing that "a government for the people,
+by the people and of the people should not perish from the earth."
+
+
+
+
+_IV. The Revolt Against Authority_
+
+
+"Where there is no vision, the people perish: but he that keepeth the
+law, happy is he."
+
+PROVERBS xxix. 18.
+
+One of the most quoted--and also mis-quoted--proverbs of the wise
+Solomon says, as translated in the authorized version: "Where there is
+no vision, the people perish." What Solomon actually said was: "Where
+there is no vision, the people _cast off restraint_." The translator
+thus confused an effect with a cause. What was the vision to which the
+Wise Man referred? The rest of the proverb, which is rarely quoted,
+explains:
+
+"Where there is no vision, the people cast off restraint: _but he that
+keepeth the law, happy is he_."
+
+The vision, then, is the authority of law, and Solomon's warning is
+that to which the great and noble founder of Pennsylvania, William Penn,
+many centuries later gave utterance, when he said:
+
+"That government is free to the people under it, where the laws rule and
+the people are a party to those laws; and all the rest is tyranny,
+oligarchy and confusion."
+
+It is my present purpose to discuss the moral psychology of the present
+revolt against the spirit of authority. Too little consideration has
+been paid by the legal profession to questions of moral psychology.
+These have been left to metaphysicians and ecclesiastics, and yet--to
+paraphrase the saying of the Master--"the laws were made for man and not
+man for the laws," and if the science of the law ignores the study of
+human nature and attempts to conform man to the laws, rather than the
+laws to man, then its development is a very partial and imperfect one.
+
+Let me first be sure of my premises. Is there in this day and
+generation a spirit of lawlessness greater or different than that that
+has always characterized human society? Such spirit of revolt against
+authority has always existed, even when the penalty of death was visited
+upon nearly all offences against life and property. Blackstone tells us
+(Book IV, Chap. I) that in the eighteenth century it was a capital
+offence to cut down a cherry tree in an orchard--a drastic penalty which
+should increase our admiration for George Washington's courage and
+veracity.
+
+We are apt to see the past in a golden haze, which obscures our vision.
+Thus, we think of William Penn's "holy experiment" on the banks of the
+Delaware as the realization of Sir Thomas More's dream of Utopia; and
+yet Pennsylvania was somewhat intemperately called in 1698 "the greatest
+refuge for pirates and rogues in America," and Penn himself wrote, about
+that time, that he had heard of no place which was "more overrun with
+wickedness" than his City of Brotherly Love, where things were so
+"openly committed in defiance of law and virtue--facts so foul that I am
+forbid by common modesty to relate them."
+
+Conceding that lawlessness is not a novel phenomenon, is not the present
+time characterized by an exceptional revolt against the authority of
+law? The statistics of our criminal courts show in recent years an
+unprecedented growth in crimes. Thus, in the federal courts, pending
+criminal indictments have increased from 9503 in the year 1912 to over
+70,000 in the year 1921. While this abnormal increase is, in part, due
+to sumptuary legislation--for approximately 30,000 cases now pending
+arise under the prohibition statutes--yet, eliminating these, there yet
+remains an increase in nine years of over 400 per cent, in the
+comparatively narrow sphere of the federal criminal jurisdiction. I have
+been unable to get the data from the State Courts; but the growth of
+crimes can be measured by a few illustrative statistics. Thus, the
+losses from burglaries which have been repaid by casualty companies have
+grown in amount from $886,000 in 1914 to over $10,000,000 in 1920; and,
+in a like period, embezzlements have increased five-fold. It is
+notorious that the thefts from the mails and express companies and other
+carriers have grown to enormous proportions. The hold-up of railroad
+trains is now of frequent occurrence, and is not confined to the
+unsettled sections of the country. Not only in the United States, but
+even in Europe, such crimes of violence are of increasing frequency, and
+a recent dispatch from Berne, under date of August 7, 1921, stated that
+the famous International Expresses of Europe were now run under a
+military guard.
+
+The streets of our cities, once reasonably secure from crimes of
+violence, have now become the field of operations for the foot-pad and
+highwayman. The days of Dick Turpin and Jack Sheppard have returned,
+with this serious difference--that the Turpins and Sheppards of our day
+are not dependent upon the horse, but have the powerful automobile to
+facilitate their crimes and make sure their escape.
+
+Thus in Chicago alone, 5000 automobiles were stolen in a single year.
+Once murder was an infrequent and abnormal crime. To-day in our large
+cities it is of almost daily occurrence. In New York, in 1917, there
+were 236 murders and only 67 convictions; in 1918, 221, and 77
+convictions. In Chicago, in 1919, there were 336, and 44 convictions.
+
+When the crime wave was at its height a year ago, the police authorities
+in more than one American city confessed their impotence to impose
+effective restraints. Life and property had seemingly become almost as
+insecure as during the Middle Ages.[3]
+
+[Footnote 3: The reader will bear in mind that these words were spoken
+in August 1921. Unquestionably, the situation has greatly improved
+during the present year(1922).]
+
+As to the subtler and more insidious crimes against the political
+state, it is enough to say that graft has become a science in city,
+state and nation. Losses by such misapplication of public funds--piled
+Pelion on Ossa--no longer run in the millions but the hundreds of
+millions. Our city governments are, in many instances, foul cancers on
+the body politic; and for us to boast of having solved the problem of
+local self-government is as fatuous as for a strong man to exult in his
+health when his body is covered with running sores. It has been
+estimated that the annual profits from violations of the prohibition
+laws have reached $300,000,000. Men who thus violate these laws for
+sordid gain are not likely to obey other laws, and the respect for law
+among all classes steadily diminishes as our people become familiar
+with, and tolerant to, wholesale criminality. Whether the moral and
+economic results of Prohibition overbalance this rising wave of crime,
+time will tell.
+
+_In limine_, let us note the significant fact that this spirit of
+revolt against authority is not confined to the political state, and
+therefore its causes lie beyond that sphere of human action.
+
+Human life is governed by all manner of man-made laws--laws of art, of
+social intercourse, of literature, music, business--all evolved by
+custom and imposed by the collective will of society. Here we find the
+same revolt against tradition and authority.
+
+In music, its fundamental canons have been thrown aside and discord has
+been substituted for harmony as its ideal. Its culmination--jazz--is a
+musical crime. If the forms of dancing and music are symptomatic of an
+age, what shall be said of the universal craze to indulge in crude and
+clumsy dancing to the vile discords of so-called "jazz" music? The cry
+of the time is:
+
+    "On with the dance, let joy be" unrefined.
+
+In the plastic arts, the laws of form and the criteria of beauty have
+been swept aside by the futurists, cubists, vorticists, tactilists, and
+other aesthetic Bolsheviki.
+
+In poetry, where beauty of rhythm, melody of sound and nobility of
+thought were once regarded as the true tests, we now have in freak forms
+of poetry the exaltation of the grotesque and brutal. Hundreds of poets
+are feebly echoing the "barbaric yawp" of Walt Whitman, without the
+redeeming merit of his occasional sublimity of thought.
+
+In commerce, the revolt is against the purity of standards and the
+integrity of business morals. Who can question that this is
+pre-eminently the age of the sham and the counterfeit? Science is
+prostituted to deceive the public by cloaking the increasing
+deterioration in quality of merchandise. The blatant medium of
+advertising has become so mendacious as to defeat its own purpose.
+
+In the recent deflation in commodity values, there was widespread
+"welching" among business men who had theretofore been classed as
+reputable. Of course, I recognize that a far greater number kept their
+contracts, even when it brought them to the verge of ruin. But when in
+the history of American business was there such a volume of broken faith
+as in the drastic deflation of 1920?
+
+In the greater sphere of social life, we find the same revolt against
+the institutions which have the sanction of the past. Social laws, which
+mark the decent restraints of print, speech and dress, have in recent
+decades been increasingly disregarded. The very foundations of the great
+and primitive institutions of mankind--like the family, the Church, and
+the State--have been shaken. Nature itself is defied. Thus, the
+fundamental difference of sex is disregarded by social and political
+movements which ignore the permanent differentiation of social function
+ordained by Nature.
+
+All these are but illustrations of the general revolt against the
+authority of the past--a revolt that can be measured by the change in
+the fundamental presumption of men with respect to the value of human
+experience. In all former ages, all that was in the past was
+presumptively true, and the burden was upon him who sought to change it.
+To-day, the human mind apparently regards the lessons of the past as
+presumptively false--and the burden is upon him who seeks to invoke
+them.
+
+Lest I be accused of undue pessimism, let me cite as a witness one who,
+of all men, is probably best equipped to express an opinion upon the
+moral state of the world. I refer to the venerable head of that
+religious organization[4] which, with its trained representatives in
+every part of the world, is probably better informed as to its spiritual
+state than any other organization.
+
+[Footnote 4: Reference is to the late Pope Benedict.]
+
+Speaking last Christmas Eve, in an address to the College of Cardinals,
+the venerable Pontiff gave expression to an estimate of present
+conditions which should have attracted far greater attention than it
+apparently did.
+
+The Pope said that five plagues were now afflicting humanity.
+
+The first was the unprecedented challenge to authority.
+
+The second, an equally unprecedented hatred between man and man.
+
+The third was the abnormal aversion to work.
+
+The fourth, the excessive thirst for pleasure as the great aim of life.
+
+The fifth, a gross materialism which denied the reality of the spiritual
+in human life.
+
+The accuracy of this indictment will commend itself to men who like
+myself are not of Pope Benedict's communion.
+
+I trust that I have already shown that the challenge to authority is
+universal and is not confined to that of the political state. Even in
+the narrower confine of the latter, the fires of revolution are either
+violently burning, or, at least, smouldering. Two of the oldest empires
+in the world, which, together, have more than half of its population
+(China and Russia) are in a welter of anarchy; while many lesser nations
+are in a stage of submerged revolt. If the revolt were confined to
+autocratic governments, we might see in it merely a reaction against
+tyranny; but even in the most stable of democracies and among the most
+enlightened peoples, the underground rumblings of revolution may be
+heard.
+
+The Government of Italy has been preserved from overthrow, not alone by
+its constituted authorities, but by a band of resolute men, called the
+"fascisti," who have taken the law into their own hands, as did the
+vigilance committees in western mining camps, to put down worse
+disorders.
+
+Even England, the mother of democracies, and the most stable of all
+Governments in the maintenance of law, has been shaken to its very
+foundations in the last three years, when powerful groups of men
+attempted to seize the State by the throat and compel submission to
+their demands by threatening to starve the community. This would be
+serious enough if it were only the world-old struggle between capital
+and labour and had only involved the conditions of manual toil. But the
+insurrection against the political state in England was more political
+than it was economic. It marked, on the part of millions of men, a
+portentous decay of belief in representative government and its chosen
+organ--the ballot box. Great and powerful groups had suddenly
+discovered--and it may be the most portentous political discovery of the
+twentieth century--that the power involved in their control over the
+necessaries of life, as compared with the power of the voting franchise,
+was as a forty-two centimetre cannon to the bow and arrow. The end
+sought to be attained, namely the nationalization of the basic
+industries, and even the control of the foreign policy of Great Britain,
+vindicated the truth of the British Prime Minister's statement that
+these great strikes involved something more than a mere struggle over
+the conditions of labour, and that they were essentially seditious
+attempts against the life of the State.[5]
+
+[Footnote 5: I am here speaking of the conditions of 1920. I appreciate
+the great improvement, which seems to me to justify the Lincoln-like
+patience of Lloyd George.]
+
+Nor were they altogether unsuccessful; for, when the armies of Lenin and
+Trotsky were at the gates of Warsaw, in the summer of 1920, the attempts
+of the Governments of England and Belgium to afford assistance to the
+embattled Poles were paralysed by the labour groups of both countries,
+who threatened a general strike if those two nations joined with France
+in aiding Poland to resist a possibly greater menace to Western
+civilization than has occurred since Attila and his Huns stood on the
+banks of the Marne.
+
+Of greater significance to the welfare of civilization is the complete
+subversion during the world war of nearly all the international laws
+which had been slowly built up in a thousand years. These principles, as
+codified by the two Hague Conventions, were immediately swept aside in
+the fierce struggle for existence, and civilized man, with his liquid
+fire and poison gas and his deliberate; attacks upon undefended cities
+and their women and children, waged war with the unrelenting ferocity of
+primitive times.
+
+Surely, this fierce war of extermination, which caused the loss of three
+hundred billion dollars in property and thirty millions of human lives,
+did mark for the time being the "twilight of civilization." The hands on
+the dial of time had been put back--temporarily, let us hope and pray--a
+thousand years.
+
+Nor will many question the accuracy of the second count in Pope
+Benedict's indictment. The war to end war only ended in unprecedented
+hatred between nation and nation, class and class, and man and man.
+Victors and vanquished are involved in a common ruin. And if in this
+deluge of blood, which has submerged the world, there is a Mount Ararat,
+upon which the ark of a truer and better peace can find refuge, it has
+not yet appeared above the troubled surface of the waters.
+
+Still less can one question the closely related third and fourth counts
+in Pope Benedict's indictment, namely the unprecedented aversion to
+work, when work is most needed to reconstruct the foundations of
+prosperity, or the excessive thirst for pleasure which preceded,
+accompanied, and now has followed the most terrible tragedy in the
+annals of mankind. The true spirit of work seems to have vanished from
+millions of men; that spirit of which Shakespeare made his Orlando
+speak when he said of his true servant, Adam:
+
+  "O good old man! how well in thee appears
+  The constant service of the antique world.
+  When service sweat for duty, not for meed!"
+
+The _moral_ of our industrial civilization has been shattered. Work for
+work's sake, as the most glorious privilege of human faculties, has
+gone, both as an ideal and as a potent spirit. The conception of work as
+a degrading servitude, to be done with reluctance and grudging
+inefficiency, seems to be the ideal of millions of men of all classes
+and in all countries.
+
+The spirit of work is of more than sentimental importance. It may be
+said of it, as Hamlet says of death: "The readiness is all." All of us
+are conscious of the fact that, given a love of work, and the capacity
+for it seems almost illimitable--as witness Napoleon, with his
+thousand-man power, or Shakespeare, who in twenty years could write
+more than twenty masterpieces.
+
+On the other hand, given an aversion to work, and the less a man does
+the less he wants to do, or is seemingly capable of doing.
+
+The great evil of the world to-day is this aversion to work. As the
+mechanical era diminished the element of physical exertion in work, we
+would have supposed that man would have sought expression for his
+physical faculties in other ways. On the contrary, the whole history of
+the mechanical era is a persistent struggle for more pay and less work,
+and to-day it has culminated in world-wide ruin; for there is not a
+nation in civilization which is not now in the throes of economic
+distress, and many of them are on the verge of ruin. In my judgment, the
+economic catastrophe of 1921 is far greater than the politico-military
+catastrophe of 1914.
+
+The results of these two tendencies, measured in the statistics of
+productive industry, are literally appalling.
+
+Thus, in 1920, Italy, according to statistics of her Minister of
+Labour, lost 55,000,000 days of work because of strikes alone. From July
+to September, many great factories were in the hands of revolutionary
+communists. A full third of these strikes had for their end political
+and not economic purposes.
+
+In Germany, the progressive revolt of labour against work is thus
+measured by competent authority: There were lost in strikes in 1917,
+900,000 working days; in 1918, 4,900,000, and, in 1919, 46,600,000.
+
+Even in our own favoured land, the same phenomena are observable. In the
+State of New York alone for 1920, there was a loss due to strikes of
+over 10,000,000 working days.
+
+In all countries the losses by such cessations from labour are little as
+compared with those due to the spirit which in England is called
+"ca'-canny" or the shirking of performance of work, and of sabotage,
+which means the deliberate destruction of machinery in operation.
+Everywhere the phenomenon has been observed that, with the highest wages
+known in the history of modern times, there has been an unmistakable
+lessening of efficiency, and that with an increase in the number of
+workers, there has been a decrease in output. Thus, the transportation
+companies in the United States have seriously made a claim against the
+United States Government for damages to their roads, amounting to
+$750,000,000, claimed to be due to the inefficiency of labour during the
+period of governmental operation.
+
+Accompanying this indisposition to work efficiently has been a mad
+desire for pleasure, such as, if it existed in like measure in preceding
+ages, has not been seen within the memory of living man. Man has danced
+upon the verge of a social abyss, and, as previously suggested, the
+dancing has, both in form and in accompanying music, lost its former
+grace and reverted to the primitive forms of crude vulgarity.
+
+which gives the spectators the maximum of emotional expression with the
+minimum of mental effort, had not been eclipsed by the splendour of a
+Dempsey or a Carpentier.
+
+Of the last count in Pope Benedict's indictment, I shall say but little.
+It is more appropriate for the members of that great and noble
+profession which is more intimately concerned with the spiritual advance
+of mankind. It is enough to say that, while the Church as an institution
+continues to exist, the belief in the supernatural and even in the
+spiritual has been supplanted in the souls of millions of men by a gross
+and debasing materialism.
+
+If my reader agrees with me in my premises then we are not likely to
+disagree in the conclusion that the causes of these grave symptoms are
+not ephemeral or superficial; but must have their origin in some
+deep-seated and world-wide change in human society. If there is to be a
+remedy, we must first diagnose this malady of the human soul.
+
+For example, let us not "lay the flattering unction to our souls" that
+this spirit is solely the reaction of the great war.
+
+The present weariness and lassitude of human spirit and the
+disappointment and disillusion as to the aftermath of the harvest of
+blood, may have aggravated, but they could not cause the symptoms of
+which I speak; for the very obvious reason that all these symptoms were
+in existence and apparent to a few discerning men for decades before the
+war. Indeed, it is possible that the world war, far from causing the
+_malaise_ of the age, was, in itself, but one of its many symptoms.
+
+Undoubtedly, there are many contributing causes which have swollen the
+turbid tide of this world-wide revolution against the spirit of
+authority.
+
+Thus, the multiplicity of laws does not tend to develop a law-abiding
+spirit. This fact has often been noted. Thus Napoleon, on the eve of the
+18th Brumaire, complained that France, with a thousand folios of law,
+was a lawless nation. Unquestionably, the political state suffers in
+authority by the abuse of legislation, and especially by the appeal to
+law to curb evils that are best left to individual conscience.
+
+In this age of democracy, the average individual is too apt to recognize
+two constitutions--one, the constitution of the State, and the second,
+an unwritten constitution, to him of higher authority, under which he
+believes that no law is obligatory which he regards as in excess of the
+true powers of government. Of this latter spirit, the widespread
+violation of the prohibition law is a familiar illustration.
+
+A race of individualists obey reluctantly, when they obey at all, any
+laws which they regard as unreasonable or vexatious. Indeed, they are
+increasingly opposed to any law, which affects their selfish interests.
+Thus many good women are involuntary smugglers. They deny the authority
+of the state to impose a tax upon a Paquin gown. The law's delays and
+laxity in administration breed a spirit of contempt, and too often
+invite men to take the law into their own hands. These causes are so
+familiar that their statement is a commonplace.
+
+Proceeding to deeper and less recognized causes, some would attribute
+this spirit of lawlessness to the rampant individualism, which began in
+the eighteenth century, and which has steadily and naturally grown with
+the advance of democratic institutions. Undoubtedly, the excessive
+emphasis upon the rights of man, which marked the political upheaval of
+the close of the eighteenth and the beginning of the nineteenth century,
+has contributed to this malady of the age. Men talked, and still talk,
+loudly of their rights, but too rarely of their duties. And yet if we
+were to attribute the malady merely to excessive individualism, we would
+again err in mistaking a symptom for a cause.
+
+To diagnose truly this malady we must look to some cause that is
+coterminous in time with the disease itself and which has been operative
+throughout civilization. We must seek some widespread change in social
+conditions, for man's essential nature has changed but little, and the
+change must, therefore, be of environment.
+
+I know of but one such change that is sufficiently widespread and
+deep-seated to account adequately for this malady of our time.
+
+Beginning with the close of the eighteenth century, and continuing
+throughout the nineteenth, a prodigious transformation has taken place
+in the environment of man, which has done more to revolutionize the
+conditions of human life than all the changes that had taken place in
+the 500,000 preceding years which science has attributed to man's life
+on the planet. Up to the period of Watt's discovery of steam vapour as a
+motive power, these conditions, so far as the principal facilities of
+life, were substantially those of the civilization which developed
+eighty centuries ago on the banks of the Nile and later on the
+Euphrates. Man had indeed increased his conquest over Nature in later
+centuries by a few mechanical inventions, such as gunpowder, telescope,
+magnetic needle, printing-press, spinning jenny, and hand-loom, but the
+characteristic of all those inventions, with the exception of gunpowder,
+was that they still remained a subordinate auxiliary to the physical
+strength and mental skill of man. In other words, man still dominated
+the machine, and there was still full play for his physical and mental
+faculties. Moreover, all the inventions of preceding ages, from the
+first fashioning of the flint to the spinning-wheel and the hand-lever
+press, were all conquests of the tangible and visible forces of Nature.
+
+With Watt's utilization of steam vapour as a motive power, man suddenly
+passed into a new and portentous chapter of his varied history.
+Thenceforth, he was to multiply his powers a thousandfold by the
+utilization of the invisible powers of Nature--such as vapour and
+electricity. This prodigious change in his powers, and therefore his
+environment, has proceeded with ever-accelerating speed.
+
+Man has suddenly become the superman. Like the giants of the ancient
+fable, he has stormed the very ramparts of Divine power, or, like
+Prometheus, he has stolen fire of omnipotent forces from Heaven itself
+for his use. His voice can now reach from the Atlantic to the Pacific,
+and, taking wing in his aeroplane, he can fly in one swift flight from
+Nova Scotia to England, or he can leave Lausanne and, resting upon the
+icy summit of Mont Blanc--thus, like "the herald, Mercury, new-lighted
+on a heaven-kissing hill"--he can again plunge into the void, and thus
+outfly the eagles themselves.
+
+In thus acquiring from the forces of Nature almost illimitable power, he
+has minimized the necessity for his own physical exertion or even
+mental skill. The machine now not only acts for him, but too often
+_thinks_ for him.
+
+Is it surprising that so portentous a change should have fevered his
+brain and disturbed his mental equilibrium? A new ideal, which he
+proudly called "progress," obsessed him, the ideal of quantity and not
+quality. His practical religion became that of acceleration and
+facilitation--to do things more quickly and easily--and thus to minimize
+exertion became his great objective. Less and less he relied upon the
+initiative of his own brain and muscle, and more and more he put his
+faith in the power of machinery to relieve him of labour. The evil of
+our age is that its values are all false. It overrates speed, it
+underrates sureness; it overrates the new, it underrates the old; it
+overrates automatic efficiency, it underrates individual craftsmanship;
+it overrates rights, it underrates duties; it overrates political
+institutions, it underrates individual responsibility. We glory in the
+fact that we can talk a thousand miles, but we ignore the greater
+question, whether when we thus out-do Stentor, we have anything worth
+saying. We have now made the serene spaces of the upper Heavens our
+media to transmit market reports and sporting news, second-rate music
+and worse oratory and in the meantime the great masters of thought,
+Homer and Shakespeare, Bach and Beethoven remain unbidden on our library
+shelves. What a sordid Vanity Fair is our modern Civilization!
+
+This incalculable multiplication of power has intoxicated man. The lust
+has obsessed him, without regard to whether it be constructive or
+destructive. Quantity, not quality, becomes the great objective. Man
+consumes the treasures of the earth faster than he produces them,
+deforesting its surface and disembowelling its hidden wealth. As he
+feverishly multiplied the things he desired, even more feverishly he
+multiplied his wants.
+
+To gain these, man sought the congested centres of human life. While
+the world, as a whole, is not over-populated, the leading countries of
+civilization were subjected to this tremendous pressure. Europe, which,
+at the beginning of the nineteenth century, barely numbered 100,000,000
+people, suddenly grew nearly five-fold. Millions left the farms to
+gather into the cities to exploit their new and seemingly easy conquest
+over Nature.
+
+In the United States, as recently as 1880, only 15 per cent. of the
+people were crowded in the cities, 85 per cent. remained upon the farms
+and still followed that occupation, which, of all occupations, still
+preserves, in its integrity, the dominance of human labour over the
+machine. To-day, 52 per cent. of the population is in the cities, and
+with many of them existence is both feverish and artificial. While they
+have employment, many of them do not themselves work, but spend their
+lives in watching machines work.
+
+The result has been a minute subdivision of labour that has denied to
+many workers the true significance and physical benefit of labour.
+
+The direct results of this excessive tendency to specialization, whereby
+not only the work but the worker becomes divided into mere fragments,
+are threefold. Hobson, in his work on John Ruskin, thus classifies them.
+In the first place, _narrowness_, due to the confinement to a single
+action in which the elements of human skill or strength are largely
+eliminated; secondly, _monotony_, in the assimilation of man to a
+machine, whereby seemingly the machine dominates man and not man the
+machine, and, thirdly, _irrationality_, in that work became dissociated
+in the mind of the worker with any complete or satisfying achievement.
+The worker does not see the fruit of his travail, and cannot therefore
+be truly satisfied. To spend one's life in opening a valve to make a
+part of a pin is, as Ruskin pointed out, demoralizing in its
+tendencies. The clerk who only operates an adding machine has little
+opportunity for self-expression.
+
+Thus, millions of men have lost both the opportunity for real physical
+exertion, the incentive to work in the joyous competition of skill, and
+finally the reward of work in the sense of achievement.
+
+More serious than this, however, has been the destructive effort of
+quantity, the great object of the mechanical age, at the expense of
+quality.
+
+Take, for example, the printing-press: No one can question the immense
+advantages which have flowed from the increased facility for
+transmitting ideas. But may it not be true that the thousandfold
+increase in such transmission by the rotary press has also tended to
+muddy the current thought of the time? True it is that the
+printing-press has piled up great treasures of human knowledge which
+make this age the richest in accessible information. I am not speaking
+of knowledge, but rather of the current thought of the living
+generation.
+
+I gravely question whether it has the same clarity as the brain of the
+generation which fashioned the Constitution of the United States. Our
+fathers could not talk over the telephone for three thousand miles, but
+have we surpassed them in thoughts of enduring value? Washington and
+Franklin could not travel sixty miles an hour in a railroad train, or
+twice that speed in an aeroplane, but does it follow that they did not
+travel to as good purpose as we, who scurry to and fro like the ants in
+a disordered ant-heap?
+
+Unquestionably, man of to-day has a thousand ideas suggested to him by
+the newspaper and the library where our ancestors had one; but have we
+the same spirit of calm inquiry and do we co-ordinate the facts we know
+as wisely as our ancestors did?
+
+Athens in the days of Pericles had but thirty thousand people and few
+mechanical inventions; but she produced philosophers, poets and artists,
+whose work after more than twenty centuries still remain the despair of
+the would-be imitators.
+
+Shakespeare had a theatre with the ground as its floor and the sky as
+its ceiling; but New York, which has fifty theatres and annually spends
+$100,000,000 in the box offices of its varied amusement resorts, has
+rarely in two centuries produced a play that has lived.
+
+To-day, man has a cinematographic brain. A thousand images are impressed
+daily upon the screen of his consciousness, but they are as fleeting as
+moving pictures in a cinema theatre. The American Press prints every
+year over 29,000,000,000 issues. No one can question its educational
+possibilities, for the best of all colleges is potentially the
+University of Gutenberg. If it printed only the truth, its value would
+be infinite; but who can say in what proportions of this vast volume of
+printed matter is the true and the false? The framers of the
+Constitution had few books and fewer newspapers. Their thoughts were few
+and simple, but what they lacked in quantity they made up in unsurpassed
+quality.
+
+Before the beginning of the present mechanical age, the current of
+living thought could be likened to a mountain stream, which though
+confined within narrow banks yet had waters of transparent clearness.
+May not the current thought of our time be compared with the mighty
+Mississippi in the period of a spring freshet? Its banks are wide and
+its current is swift, but the turbid stream that flows onward is one of
+muddy swirls and eddies and overflows its banks to their destruction.
+
+The great indictment, however, of the present age of mechanical power is
+that it has largely destroyed the spirit of work. The great enigma which
+it propounds to us, and which, like the riddle of the Sphinx, we will
+solve or be destroyed, is this:
+
+_Has the increase in the potential of human power, through
+thermodynamics, been accompanied by a corresponding increase in the
+potential of human character?_
+
+To this life and death question, a great French philosopher, Le Bon,
+writing in 1910, replied that the one unmistakable symptom of human life
+was "the increasing deterioration in human character," and a great
+physicist has described the symptom as "the progressive enfeeblement of
+the human will."
+
+In a famous book, _Degeneration_, written at the close of the nineteenth
+century, Max Nordau, as a pathologist, explains this tendency by arguing
+that our complex civilization has placed too great a strain upon the
+limited nervous organization of man.
+
+A great financier, the elder J.P. Morgan, once said of an existing
+financial condition that it was suffering from "undigested securities,"
+and, paraphrasing him, is it not possible that man is suffering from
+undigested achievements and that his salvation must lie in adaptation to
+a new environment, which, measured by any standard known to science, is
+a thousandfold greater in this year of grace than it was at the
+beginning of the nineteenth century?
+
+No one would be mad enough to urge such a retrogression as the
+abandonment of labour-saving machinery would involve. Indeed, it would
+be impossible; for, in speaking of its evils, I freely recognize that
+not only would civilization perish without its beneficent aid, but that
+every step forward in the history of man has been coincident with, and
+in large part attributable to, a new mechanical invention.
+
+But suppose the development of labour-saving machinery should reach a
+stage where all human labour was eliminated, what would be the effect on
+man? The answer is contained in an experiment which Sir John Lubbock
+made with a tribe of ants. Originally the most voracious and militant of
+their species, yet when denied the opportunity for exercise and freed
+from the necessity of foraging for their food, in three generations they
+became anaemic and perished.
+
+Take from man the opportunity of work and the sense of pride in
+achievement and you have taken from him the very life of his existence.
+Robert Burns could sing as he drove his ploughshare through the fields
+of Ayr. To-day millions who simply watch an automatic infallible
+machine, which requires neither strength nor skill, do not sing at their
+work but too many curse the fate, which has chained them, like Ixion, to
+a soulless machine.
+
+The evil is even greater.
+
+The specialization of our modern mechanical civilization has caused a
+submergence of the individual into the group or class. Man is fast
+ceasing to be the unit of human society. Self-governing groups are
+becoming the new units. This is true of all classes of men, the employer
+as well as the employee. The true justification for the American
+anti-monopoly statutes, including the Sherman anti-trust law, lies not
+so much in the realm of economics as in that of morals. With the
+submergence of the individual, whether he be capitalist or wage-earner,
+into a group, there has followed the dissipation of moral
+responsibility. A mass morality has been substituted for individual
+morality, and unfortunately, group morality generally intensifies the
+vices more than the virtues of man.
+
+Possibly, the greatest result of the mechanical age is this spirit of
+organization.
+
+Its merits are manifold and do not require statement; but they have
+blinded us to the demerits of excessive organization.
+
+We are now beginning to see--slowly, but surely--that a faculty of
+organization which, as such, submerged the spirit of individualism, is
+not an unmixed good.
+
+Indeed, the moral lesson of the tragedy of Germany is the demoralizing
+influence of organization carried to the _n_th power. No nation was ever
+more highly organized than this modern State. Physically, intellectually
+and spiritually it had become a highly developed machine. Its dominating
+mechanical spirit so submerged the individual that, in 1914, the paradox
+was observed of an enlightened nation that was seemingly destitute of a
+conscience.
+
+What was true of Germany, however, was true--although in lesser
+degree--of all civilized nations. In all of them, the individual had
+been submerged in group formations, and the effect upon the character of
+man has been destructive of his nobler self.
+
+This may explain the paradox of so-called "progress." It may be likened
+to a great wheel, which, from the increasing domination of mechanical
+forces, developed an ever-accelerating speed, until, by centrifugal
+action, it went off its bearings in 1914 and caused an unprecedented
+catastrophe. As man slowly pulls himself out of that gigantic wreck and
+recovers consciousness, he begins to realize that speed is not
+necessarily progress.
+
+Of all this, the nineteenth century, in its exultant pride in its
+conquest of the invisible forces, was almost blind. It not only accepted
+progress as an unmistakable fact--mistaking, however, acceleration and
+facilitation for progress--but in its mad folly believed in an immutable
+law of progress which, working with the blind forces of machinery, would
+propel man forward.
+
+A few men, however, standing on the mountain ranges of human
+observation, saw the future more clearly than did the mass. Emerson,
+Carlyle, Ruskin, Samuel Butler, and Max Nordau, in the nineteenth
+century, and, in our time, Ferrero, all pointed out the inevitable
+dangers of the excessive mechanization of human society. The prophecies
+were unhappily as little heeded as those of Cassandra.
+
+One can see the tragedy of the time, as a few saw it, in comparing the
+first _Locksley Hall_ of Alfred Tennyson, written in 1827, with its
+abiding faith in the "increasing purpose of the ages" and its roseate
+prophecies of the golden age, when the "war-drum would throb no longer
+and the battle flags be furled in the Parliament of Man and the
+Federation of the World," and the later _Locksley Hall_, written sixty
+years later, when the great spiritual poet of our time gave utterance to
+the dark pessimism which flooded his soul:
+
+  "Gone the cry of 'Forward, Forward,' lost within a growing gloom;
+  Lost, or only heard in silence from the silence of a tomb.
+
+  Half the marvels of my morning, triumphs over time and space,
+  Staled by frequence, shrunk by usage, into commonest commonplace!
+
+  Evolution ever climbing after some ideal good,
+  And Reversion ever dragging Evolution in the mud.
+
+  Is it well that while we range with Science, glorying in the Time,
+  City children soak and blacken soul and sense in city slime?"
+
+Am I unduly pessimistic? I fear that this is the case with most men who,
+like Dante, have crossed their fiftieth year and find themselves in a
+"dark and sombre wood."
+
+My reader will probably subject me to the additional reproach that I
+suggest no remedy.
+
+There are many palliatives for the evils which I have discussed. To
+rekindle in men the love of work for work's sake and the spirit of
+discipline, which the lost sense of human solidarity once inspired,
+would do much to solve the problem, for work is the greatest moral force
+in the world. But I must frankly add that I have neither the time nor
+the qualifications to discuss the solution of this grave problem.
+
+If we of this generation can only recognize that the evil exists, then
+the situation is not past remedy; for man has never yet found himself in
+a blind alley of negation. He is still "master of his soul and captain
+of his fate," and, to me, the most encouraging sign of the times is the
+persistent evidence of contemporary literature that thoughtful men now
+recognize that much of our boasted progress was as unreal as a rainbow.
+While the temper of the times seems for the moment pessimistic, it
+merely marks the recognition of man of an abyss whose existence he
+barely suspected but over which his indomitable courage will yet carry
+him.
+
+I have faith in the inextinguishable spark of the Divine, which is in
+the human soul and which our complex mechanical civilization has not
+extinguished. Of this, the world war was in itself a proof. All the
+horrible resources of mechanics and chemistry were utilized to coerce
+the human soul, and all proved ineffectual. Never did men rise to
+greater heights of self-sacrifice or show a greater fidelity "even unto
+death." Millions went to their graves, as to their beds, for an ideal;
+and when that is possible, this Pandora's box of modern civilization,
+which contained all imaginable evils, as well as benefits, also leaves
+hope behind.
+
+I am reminded of a remark that the great Roumanian statesman, Taku
+Jonescu, made during the Peace Conference at Paris. When asked his views
+as to the future of civilization, he replied: "Judged by the light of
+reason there is but little hope, but I have faith in man's
+inextinguishable impulse to live."
+
+Happily, that cannot be affected by any change in man's environment! For
+even when the cave-man retreated from the advance of the polar cap,
+which once covered Europe with Arctic desolation, he not only defied the
+elements but showed even then the love of the sublime by beautifying the
+walls of his icy prison with those mural decorations which were the
+beginning of art.
+
+Assuredly, the man of to-day, with the rich heritage of countless ages,
+can do no less. He has but to diagnose the evil and he will then, in
+some way, meet it.
+
+But what can man-made law do in this warfare against the blind forces of
+Nature?
+
+It is easy to exaggerate the value of all political institutions; for
+they are generally on the surface of human life and do not reach down to
+the deep under-currents of human nature. But the law can do something to
+protect the soul of man from destruction by the soulless machine.
+
+It can defend the spirit of individualism. It must champion the human
+soul in its God-given right to exercise freely the faculties of mind and
+body. We must defend the right to work against those who would either
+destroy or degrade it. We must defend the right of every man, not only
+to join with others in protecting his interests, whether he is a brain
+worker or a hand worker--for without the right of combination the
+individual would often be the victim of giant forces--but we must
+vindicate the equal right of an individual, if he so wills, to depend
+upon his own strength.
+
+The tendency of group morality to standardize man--and thus reduce all
+men to the dead level of an average mediocrity--is one that the law
+should combat. Its protection should be given to those of superior skill
+and diligence, who ask the due rewards of such superiority. Any other
+course, to use the fine phrase of Thomas Jefferson in his first
+inaugural, is to "take from the mouth of labour the bread it has
+earned."
+
+Of this spirit one of the noblest expressions is the Constitution of the
+United States. That Magna Charta has not wholly escaped the destructive
+tendencies of a mechanical age. It was framed at the very end of the
+pastoral-agricultural age and at a time when the spirit of
+individualism was in full flower. The hardy pioneers who, with their
+axes, made straight the pathway of an advancing civilization, were
+sturdy men who need not be undervalued to us of the mechanical age. The
+"prairie schooner," which met the elemental forces of Nature with the
+proud challenge: "Pike's Peak or bust," produced as fine a type of
+manhood as the age which travels either in Mr. Ford's "fliver" or the
+more luxurious Rolls-Royce.
+
+The Constitution was framed in the period that marked the passing of the
+primitive age and the dawn of the day of the machine. Watt had recently
+discovered the potency of steam vapour as a motive power; but its only
+use at first was for pumping water out of the mines.
+
+When the framers of the Constitution met in high convention in
+Philadelphia in the summer of 1787, a Connecticut Yankee, John Fitch,
+was then also working in Philadelphia upon his steamboat; but twenty
+years were to pass before the prow of the _Clermont_ was to part the
+waters of the Hudson, and nearly a half century before transportation
+was to be revolutionized by the utilization of Watt's invention in the
+locomotive. Of the wonders of the steamship, the railroad, the
+telegraphic cable, the wireless, the gasoline engine, and a thousand
+other mechanical miracles, the framers of the American Constitution did
+not even dream.
+
+The greatest and noblest purpose of the Constitution was not alone to
+hold in nicest equipose the relative powers of the nation and the
+States, but also to maintain in the scales of justice a true equilibrium
+between the rights of government and the rights of an individual. It did
+not believe that the State was omnipotent or infallible, and yet it
+proclaimed its authority within wise and just limits. It defended the
+integrity of the human soul.
+
+In other governments, these fundamental decencies of liberty rest upon
+the conscience of the legislature. Under the American Constitution,
+they are part of the fundamental law, and, as such, enforceable by
+judges sworn to defend the integrity of the individual as fully as the
+integrity of the State.
+
+When did a nobler "vision" inspire men in the political annals of
+mankind? Without that vision to restrain each succeeding generation of
+Americans from the tempting excesses of political power, the American
+Commonwealth, with its great heterogeneous democracy, would probably
+perish.
+
+That vision still remains as an ideal with the American people and still
+leads them to ever-higher achievements, for in all the mad changes of a
+frenzied hour, they have not yet lost faith in or love for the
+Constitution of the Fathers! That vision will remain with them as long,
+and no longer, as there is in their hearts a conscious and willing
+acquiescence in its wisdom and justice. Obviously, it can have no
+inherent vigour to perpetuate itself. If it ceases to be of the spirit
+of the people, then the yellow parchment whereon it is inscribed can
+avail nothing. When that parchment was last taken from the safe in the
+State Department, the ink in which it had been engrossed nearly 134
+years ago was found to have faded. All who believe in constitutional
+government must hope that this is not a portentous symbol. The American
+people must write the compact, not with ink upon parchment, but with
+"letters of living light"--to use Webster's phrase--upon their hearts.
+
+Again the solemn warning of the wise man of old recurs to us:
+
+
+"Where there is no vision, the people perish; but he that keepeth the
+law, happy is he."
+
+
+
+
+
+End of the Project Gutenberg EBook of The Constitution of the United States
+by James M. Beck
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