of the Constitution, nor necessarily attributable to any specific provision which it contains. The most remarkable instance of all, the choice of presidential candidates by the great parties assembled in their national conventions, will be fully considered in a later chapter.

One of the changes which the last seventy years have brought about is so remarkable as to deserve special mention. The Constitution contains no provisions regarding the electoral franchise in congressional elections save the three following:

That the franchise shall in every State be the same as that by which the members of the "most numerous branch of the State legislature" are chosen (Art. i. § 2).

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.

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

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.

It is natural, it is indeed inevitable, that there should be in every country such a parasitic growth of usages and understandings round the solid legal framework of government. But must not the result of such a growth be different where a rigid constitution exists from what it is in countries where, as in England, the constitution. is flexible? In England usages of the kind described become inwoven with the law of the country as settled by statutes and decisions, and modify that law. Cases come before a court in which a usage is recognized and thereby obtains a sort of legal sanction. Statutes are passed in which an existing usage is taken for granted, and which therefore harmonize with it. Thus the always changing Constitution becomes interpenetrated by custom. Custom is in fact the first stage through which a rule passes before it is embodied in binding law. But in America, where the fundamental law cannot readily be, and is in fact very rarely altered, may we not expect a conflict, or at least a want of harmony, between law and custom, due to the constant growth of the one and the immutability of the other?

In examining this point one must distinguish between subjects on which the Constitution is silent and subjects on which it speaks. As regards the former there is

little difficulty. Usage and legislation may expand the Constitution in what way they please, subject only to the control of public opinion. The courts of law will not interfere, because no provision of the Constitution is violated; and even where it may be thought that an act of Congress or of the executive is opposed to the spirit of the Constitution, still if it falls within the range of the discretion which these authorities have received, it will not be questioned by the judges.1

If, on the other hand, either congressional legislation or usage begins to trench on ground which the Constitution expressly covers, the question at once arises whether such legislation is valid, or whether an act done in conformity with such usage is legal. Questions of this kind do not always come before the courts, and if they do not, the presumption is in favour of whatever act has been done by Congress or by any legally constituted authority. When, however, such a question is susceptible of judicial determination and is actually brought before a tribunal, the tribunal is disposed rather to support than to treat as null the act done. Applying that expansive interpretation which has prevailed since the war as it prevailed in the days of Chief-Justice Marshall, the Supreme court is apt to find grounds for moving in the direction which it perceives public opinion to have taken, and for putting on the words of the Constitution a sense which legalizes what Congress has enacted or custom approved. When this takes place things proceed smoothly. The change which circumstances call for is made gently, and is controlled, perhaps modified, in its operation.

1 "It is an axiom in our jurisprudence that an Act of Congress is not to be pronounced unconstitutional unless the defect of power to pass it is so clear as to admit of no doubt. Every doubt is to be resolved in favour of the validity of the law."-Swayne, J., in U.S. v. Rhodes, 1 Abb. U.S. 49.

But 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 course. But if the needs of the time be pressing, courts and Constitution may have to give way. Salus reipublicae lex suprema. 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. 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,

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."

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 review 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. But politicians in other countries will err if they suppose that the existence of a rigid or supreme constitution is enough to avert collisions, or to secure the victory of the fundamental instrument. A rigid constitution resembles, not some cliff of Norwegian gneiss which bears for centuries unchanged the lash of Atlantic billows, but rather a sea-wall, such as guards the seaside promenade of an English town, whose smooth surface resists the ordinary waves and currents of the Channel but may be breached or washed away by some tremendous tempest. The American Constitution has stood unbroken, because America has never seen, as some European countries have seen, angry multitudes or military tyrants bent on destroying the institutions which barred the course of their passions or ambition. And it has also stood because it has submitted to a process of constant, though sometimes scarcely perceptible, change which has adapted it to the conditions of a new age.

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

2 Judge Cooley aptly observes: "If the great men of 1787 had been living a little later they might have seen in the experience of France that the most carefully prepared and popular written constitution is not more secure than any other against sudden, violent, and destructive changes, and may, indeed, be more easily overturned by the assaults of faction than it possibly could be if its principles, having their roots deep in the nature of the people, were only expressed in unwritten usages."—Address to the South Carolina Bar Association.