CONSTITUTIONAL LEGISLATION. CHAPTER I. SOURCES OF REPRESENTATIVE GOVERNMENT IN THE THE Government of the United States occupies a peculiar and unparalleled position before the world. Born upon a continent which seems to have been providentially dedicated to the development of republican institutions, and resting upon the best foundations known to political architecture, the power which it exhibits, and the influence of its success upon the stability of older governments, have caused it to become at once the most interesting and the most inspiring member in the family of nations. In its short lifetime of a century it has already been subjected to the severest strains which a constitutional government can endure. Without adequate precedents to guide its action, it has passed through an infancy of legislation marked by few errors, and none of lasting consequence. In this brief period it has added to its burthens the annexation of large territories like Louisiana, Florida, Texas, California, and Alaska, and has carved out of them thirtyone sovereign States as a girdle to its original thirteen. Its rapid expansion and absorption of a continent; its equal adaptability to the wants of a population varying from five to sixty millions in a century, as shown by its symmetrical growth in the various departments of legislation, jurisprudence, and international relations, have made it the wonder and study of statesmen and jurists. Finally, it has passed through the fiery furnace of a civil war whose gigantic proportions found no equal in the records of history, and has emerged with shoulders disburthened of the incubus of slavery, and a guerdon of the newly-cemented allegiance of all the people of all the States. It stands, therefore, unique in itself, a monument of the vitality and elasticity of the commonwealth principle, with every element of duration in its construction, and apparently free from those vicissitudes of longevity and decay which have everywhere assailed the political fabrics of nations. Apart from the advantages of geographical positionof unlimited territory, and the fortunate inheritance of a national continuity in laws, language, and in domestic institutions derived from the mother country, much, if not all of this unparalleled progress, is due to our compensated system of legislation, which unites the broadest principles of home rule in the States-with the most definite and enumerated limitations of power in the Federal Government. We have established what the world had never before witnessed in the genesis of a Republic. Nor, but for the favoring circumstances of remoteness from the mother country, under which the English colonists were permitted to exercise themselves in self-government and to attain to a knowledge of its powers and its dangers, would they have been able to forge with such consummate skill a political union of independent parts, having over them a supervisory, yet not intermeddling government of the whole. We have a federation without a confederacy of States, and a national government, but with restricted domestic powers. This political paradox, which no previous century could have produced, is the consummate result of race intuition, and of long preparation on the soil of English constitutional liberty. No study of American administrative law can be complete which does not begin with an inquiry into the historical sources of representative government as they may be traced through the various stages of our judicial and political legislation. Certain cardinal facts meet us at every turn of the pages of this record. These facts constitute the foundation stones on which our political temple was built. Those who utilized them, whether as founders of constitutions or framers of laws, "builded better than they knew," and with a wisdom in foresight which seemed born of inspiration. No human hands were ever so deftly guided before. And none appear to have realized more fully that in the structure of popular government the animating principle must be sought in the common law, as represented by the domestic life, the religious creed, and the political sentiment of the community whenever free to express itself. In yielding to the combined power of these forces, legislation must be flexible, in order to obey that law of moral equivalents, which expresses the impossibility of guiding human affairs by a standard of mathematical precision. It follows, as a result, that the legal constitution of a country, representing a supreme effort of national polity, is never a spontaneous development, but always rests upon and is evolved from a social constitution which furnishes the mould into which it is ultimately cast. And since custom is the origin of law, legislation should be based upon the social standard of justice. That standard always reflects the customs and habits and opinions of the people, and contains the inner law which antedates the law. It is this social constitution, therefore, which supplies the necessary organic life to the civil institutions that are built upon it; and thus reflects both the national conscience and the national will. What the people feel, and what they will, they sooner or later enact into positive laws. Such is the history of representative government the world over. But government, being everywhere a tentative effort to meet present wants and to anticipate future necessities, is always so far experimental that the function of legislation, as a department of public duty, does not admit of classification among the accepted sciences. Its principles cannot be translated into definite formulæ, nor, in practice, made productive of assured results. Government, like human nature, deals constantly with independent variables. Its purpose is to adapt legal instruments to the wants of political society, and in doing this it finds itself constantly met and often thwarted by that personal equation which, whether belonging to the individual sole or the individual aggregate, represents the moral, physical, and social temper of the community. This temper is found to vary among races of men. A nameless yet potential factor of unknown origin, of indeterminate composition, and allpervading influence, it stamps itself in indelible character upon the organization of communities as a law of universal conduct. A tendency of this kind forming a special race-instinct seems to have been everywhere a congenital factor in the genesis of human government. By lapse of time and repeated descent it has now become a political heritage, unconsciously transmitted from generation to generation. Under such historical proofs as may easily be adduced, it is not difficult, therefore, to explain the political tendencies of a nation from its known and underlying race instincts; and the growth of any particular form of government is thus seen to depend very largely upon the congeniality of this form to the national character. For example the Oriental nations have always preferred monarchical and personal governments. It is probable that any attempt to graft democratic forms of political society upon them would meet with signal failure. This law of preference for absolute authority is similarly stamped upon the European nations, except where leavened by admixture with an Aryan stock. The pervading character of this admixture, by giving rise to a common political instinct of independence among the Western nations, has prepared them for every subsequent development in the freedom of government which they have accomplished. It is to the Aryan instinct of popular government beginning in household and tribe, that we owe the growth of those free States, in which the voice of the people is permitted to express itself in the framing of laws.1 From personal and despotic monarchy to constitutional monarchy is a great stride; yet it was finally accomplished by England, prepared by her race instincts and her political experience, through an act of Parliament and a dynastic revolution. It is true that eighteen years of confusion and bloodshed were required to bring about this great conclusion; for, in theory, the British Constitution had not meanwhile been changed by statutes of a purely declaratory character, which introduced no new rights but simply repeated those of immemorial existence. If there was any alteration in principles of government it consisted in gradually transferring the substance of power to Parliament while allowing the sovereign to retain its shadow. "The Aryan Household," W. A. Hearn; Tacitus' "Germany," §§ 11, 12. |