That when any male citizens over twenty-one years of age are excluded by any State from the franchise (except for crime) the basis of representation in Congress of that State shall be proportionately reduced (Am. xiv., 1868).

That "the right of citizens of the United States to vote shall not be denied or abridged on account of race, colour, or previous condition of servitude" (Am. xv., 1870).

Subject to these conditions every State may regulate the electoral franchise as it pleases.

In the first days of the Constitution the suffrage was in nearly all States limited by various conditions (e.g. property qualification, length of residence, etc.) which excluded, or might have excluded, though in some States the proportion of very poor people was small, a considerable number of the free inhabitants. At present the suffrage is in every State practically universal. It had become so in the free States1 even before the war. Here is an advance towards pure democracy effected without the action of the National legislature, but solely by the legislation of the several States, a legislation. which, as it may be changed at any moment, is, so far as the National government is concerned, mere custom. And of this great step, modifying profoundly the colour and character of the government, there is no trace in the words of the Constitution other than the provisions of the fourteenth and fifteenth amendments introduced for the benefit of the liberated Negroes.

Sometimes the courts feel bound to declare some statute, or executive act done in pursuance of usage, contrary to the Constitution. What happens? In theory the judicial determination is conclusive, and ought to check any further progress in the path which has been pronounced unconstitutional. But whether this result follows will in practice depend on the circumstances of the moment. If the case is not urgent, if there is no strong popular impulse behind Congress or the President, no paramount need for the usage which had sprung up and is now disapproved, the decision of the courts will be acquiesced in; and whatever tendency towards change exists will seek some other channel where no constitutional obstacle bars its But if the needs of the time be pressing, courts and

course.

1 Save that in many of them persons of colour were placed at a disadvantage.

suprema.

Constitution may have to give way. Salus reipublicae lex Above that supreme written law stands the safety of the commonwealth, which will be secured, if possible in conformity with the Constitution; but if that be not possible, then by evading, or even by overriding the Constitution.1 This is what happened in the Civil War, when men said that they would break the Constitution in order to preserve it.

Attempts to disobey the Constitution have been rare, because the fear of clashing with it has arrested many mischievous proposals in their earlier stages, while the influence of public opinion has averted possible collisions by leading the courts to lend their ultimate sanction to measures or usages which, had they come under view at their first appearance, might have been pronounced unconstitutional. That collisions have been rare is good evidence of the political wisdom of American statesmen and lawyers.

The solemn determination of a people enacting a fundamental law by which they and their descendants shall be governed cannot prevent that law, however great the reverence they continue to profess for it, from being worn away in one part, enlarged in another, modified in a third, by the ceaseless action of influences playing upon the individuals who compose the people. Thus the American Constitution has necessarily changed as the nation has changed, has changed-in the spirit with which men regard it, and therefore in its own spirit. To use the words of the eminent constitutional lawyer whom I have more than once quoted: "We may think," says Judge Cooley, "that we have the Constitution all before us; but for

1 In a remarkable letter written to Mr. Hodges (4th April 1864), President Lincoln said: " My oath to preserve the Constitution imposed on me the duty of preserving by every indispensable means that government, that nation, of which the Constitution was the organic law. Was it possible to lose the nation and yet preserve the Constitution? By general law life and limb must be protected, yet often a limb must be amputated to save a life, but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation. Right or wrong I assumed this ground, and now avow it. I could not feel that to the best of my ability I had even tried to preserve the Constitution, if, to save slavery, or any minor matter, I should permit the wreck of government, country, and Constitution altogether."

2 Such as the expenditure of vast sums on "internal improvements" and the assumption of wide powers over internal communications.

practical purposes the Constitution is that which the government, in its several departments, and the people in the performance of their duties as citizens, recognize and respect as such; and nothing else is. . . . Cervantes says: Every one is the son of his own works. This is more emphatically true of an instrument of government than it can possibly be of a natural person. What it takes to itself, though at first unwarrantable, helps to make it over into a new instrument of government, and it represents at last the acts done under it.”

CHAPTER XXXIII

THE RESULTS OF CONSTITUTIONAL DEVELOPMENT

WE have seen that the American Constitution has changed, is changing, and by the law of its existence must continue to change, in its substance and practical working even when its words remain the same. "Time and habit," said Washington, "are at least as necessary to fix the true character of governments as of other human institutions: " and while habit fixes some things, time remoulds others.

It remains to ask what has been the general result of the changes it has suffered, and what light an examination of its history, in this respect, throws upon the probable future of the instrument and on the worth of rigid or supreme constitutions in general.

The Constitution was avowedly created as an instrument of checks and balances. Each branch of the National government was to restrain the others, and maintain the equipoise of the whole. The legislature was to balance the executive, and the judiciary both. The two Houses of the legislature were to balance one another. The National government, taking all its branches together, was balanced against the State governments. As this equilibrium was placed under the protection of a document, unchangeable save by the people themselves, no one of the branches of the National government has been able to absorb or override the others, as the House of Commons and the Cabinet, itself a child of the House of Commons, have in England overridden and subjected the Crown and the House of Lords. Each branch maintains its independence, and can, within certain limits, defy the others.

But there is among political bodies and offices (i.e. the persons who from time to time fill the same office) of necessity a 1 Farewell Address, 17th September 1796. *

constant strife, a struggle for existence similar to that which Mr. Darwin has shown to exist among plants and animals; and as in the case of plants and animals so also in the political sphere this struggle stimulates each body or office to exert its utmost force for its own preservation, and to develop its aptitudes in any direction wherein development is possible. Each branch of the American government has striven to extend its range and its powers; each has advanced in certain directions, but in others has been restrained by the equal or stronger pressure of other branches. I shall attempt to state the chief differences perceptible between the ideas which men entertained regarding the various bodies and offices of the government when they first entered life, and the aspect they now wear to the nation.

The President has developed a capacity for becoming, in moments of National peril, something like a Roman dictator. He is in quiet times no stronger than he was at first, possibly weaker. Congress has in some respects encroached on him, yet his office has shown that it may, in the hands of a trusted leader and at the call of a sudden necessity, rise to a tremendous height.

The ministers of the President have not become more important either singly or collectively as a Cabinet. Cut off from the legislature on one side, and from the people on the other, they have been a mere appendage to the President.

The Senate has come to press heavily on the executive, and at the same time has developed legislative functions which, though contemplated in the Constitution, were comparatively rudimentary in the older days. It has, in the judgment of American publicists, grown relatively stronger than it then was.

The Vice-President of the United States has become even more insignificant than the Constitution seemed to make him.

On the other hand, the Speaker of the House of Representatives, whom the Constitution mentions only once and on whom it bestows no power, has now secured one of the leading parts in the piece, and can affect the course of legislation more than any other single person.

An oligarchy of chairmen of the leading committees has sprung up in the House of Representatives as a consequence