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 ChiefJustice 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.

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 Con

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.

stitution; 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, 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.2 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

1 In a remarkable letter written to Mr. Hodges (4th April 1864), President Lincoln said: 66 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 law. ful 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.

3 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.

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.

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 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 XXXV

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: "1 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 constant 1 Farewell Address, 17th September 1796.

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 1 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 Repre sentatives, whom the Constitution mentions only once, and on whom it bestows no powers, 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 of

1 It is from these ideas that one must start in attempting such a comparison, because to endeavour to determine what the powers of each body and person really were would involve a long and difficult inquiry.