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

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

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

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

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

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

APPENDIX

NOTE TO CHAPTER III

ON CONSTITUTIONAL CONVENTIONS

IN America it is always by a convention (i.e. a representative body called together for some occasional or temporary purpose) that a constitution is framed. It was thus that the first constitutions for the thirteen revolting colonies were drawn up and enacted in 1776 and the years following; and as early as 1780 the same plan had suggested itself as the right one for framing a constitution for the whole United States.1 Recognized in the Federal Constitution (Art. v.) and in the successive Constitutions of the several States as the proper method to be employed when a new constitution is to be prepared, or an existing constitution revised throughout, it has now become a regular and familiar part of the machinery of American government, almost a necessary part, because all American legislatures are limited by a fundamental law, and therefore when a fundamental law is to be repealed or largely recast, it is desirable to provide for the purpose a body distinct from the ordinary legislature. Where it is sought only to change the existing fundamental law in a few specified points, the function of proposing these changes to the people for their

1 It is found in a private letter of Alexander Hamilton (then only twentythree years of age) of that year.

acceptance may safely be left, and generally is left, to the legislature. Originally a convention was conceived of as a sovereign body, wherein the full powers of the people were vested by popular election. It is now, however, merely an advisory body, which prepares a draft of a new constitution and submits it to the people for their acceptance or rejection. And it is not deemed to be sovereign in the sense of possessing the plenary authority of the people, for its powers may be, indeed now invariably are, limited by the statute under which the people elect it.1

Questions relating to the powers of a Constitutional Convention have several times come before the courts, so that there exists a small body of law as well as a large body of custom and practice regarding the rights and powers of such assemblies. Into this law and practice I do not propose to enter. But it is worth while to indicate certain advantages which have been found to attach to the method of entrusting the preparation of a fundamental instrument of government to a body of men specially chosen for the purpose instead of to the ordinary legislature. The topic suggests interesting comparisons with the experience of France and other European countries in which constitutions have been drafted and enacted by the legislative, which has been sometimes also practically the executive, authority. Nor is it wholly without bearing on problems which have recently arisen in England, where Parliament has found itself, and may find itself again, invited to enact what would be in substance a new constitution for a part of the United Kingdom.

An American Constitutional Convention, being chosen for the sole purpose of drafting a constitution, and having nothing to do with the ordinary administration of government,

1 The State Conventions which carried, or rather affected to carry, the seceding Slave States out of the Union, acted as sovereign bodies. Their proceedings, however, though clothed with legal forms, were practically revolutionary.

2 See the learned and judicious treatise of Judge Jameson on Constitutional Conventions.

no influence or patronage, no power to raise or appropriate revenue, no opportunity of doing jobs for individuals or corporations, is not necessarily elected on party lines or in obedience to party considerations. Such considerations do affect the election, but they are not always dominant, and may sometimes be of little moment.1 Hence men who have no claims on a party, or will not pledge themselves to a party, may be and often are elected; while men who seek to enter a legislature for the sake of party advancement or the promotion of some gainful object do not generally care to serve in a convention.

When the convention meets, it is not, like a legislature, a body strictly organized by party. A sense of individual independence and freedom may prevail unknown in legislatures. Proposals have therefore a chance of being considered on their merits. A scheme does not necessarily command the support of one set of men nor encounter the hostility of another set because it proceeds from a leader or a group belonging to a particular party. And as the ordinary party questions do not come up for decision while its deliberations are going on, men are not thrown back on their usual party affiliations, nor are their passions roused by exciting political issues.

Debate Business

Having no work but constitution-making to consider, a convention is free to bend its whole mind to that work. has less tendency to stray off to irrelevant matters. advances because there are no such interruptions as a legislature charged with the ordinary business of government must expect.

Since a convention assembles for one purpose only, and that a purpose specially interesting to thoughtful and public-spirited citizens, and since its duration is short, men who would not care to enter a legislature, men pressed by

1 It will be shown in the account of the legislatures and political parties of the States (in Vol. II. post) that the questions of practical importance to the States with which a State Convention would deal are very often not in issue between the two State parties, seeing that the latter are formed on national lines.