relieves Congress of a burden too heavy for its shoulders; for although it has far less foreign policy to discuss than the Parliaments of England, France, or Italy, and although the separation of the executive from the legislative department gives it less responsibility for the ordinary conduct of the administration than devolves on those Chambers, it could not possibly, were its competence as large as theirs, deal with the multiform and increasing demands of the different parts of the Union. There is great diversity in the material conditions of different parts of the country, and at present the people, particularly in the West, are eager to have their difficulties handled, their economic and social needs satisfied, by the State and the law. It would be extremely difficult for any central legislature to pass measures suited to these dissimilar and varying conditions. How little Congress could satisfy them appears by the very imperfect success with which it cultivates the field of legislation to which it is now limited.

These merits of the Federal system of government which I have enumerated are the counterpart and consequences of that limitation of the central authority whose dangers were indicated in last chapter. They are, if one may reverse the French phrase, the qualities of Federalism's defects. The problem which all federalized nations have to solve is how to secure an efficient central government and preserve national unity, while allowing free scope for the diversities, and free play to the authorities, of the members of the federation. It is, to adopt that favourite astronomical metaphor which no American panegyrist of the Constitution omits, to keep the centrifugal and centripetal forces in equilibrium, so that neither the planet States shall fly off into space, nor the sun of the Central government draw them into its consuming fires. The characteristic merit of the American Constitution lies in the method by which it has solved this problem. It has given the National government a direct authority over all citizens, irrespective of the State governments, and has therefore been able safely to leave wide powers in the hands of those governments. And by placing the Constitution above both the National and the State governments, it has referred the arbitrament of disputes between them to an independent body, charged with the interpretation of the Constitution, a body which is to be deemed not so much a third authority in the

government as the living voice of the Constitution, the unfolder of the mind of the people whose will stands expressed in that supreme instrument.

1

The application of these two principles, unknown to, or at any rate little used by, any previous federation, has contributed more than anything else to the stability of the American system, and to the reverence which its citizens feel for it, a reverence which is the best security for its permanence. Yet even these devices would not have succeeded but for the presence of a mass of moral and material influences stronger than any political devices, which have maintained the equilibrium of centrifugal and centripetal forces. On the one hand there has been the love of local independence and self-government; on the other, the sense of community in blood, in language, in habits and ideas, a common pride in the national history and the national flag.

Quid leges sine moribus? The student of institutions, as well as the lawyer, is apt to overrate the effect of mechanical contrivances in politics. I admit that in America they have had one excellent result; they have formed a legal habit in the mind of the nation. But the true value of a political contrivance resides not in its ingenuity but in its adaptation to the temper and circumstances of the people for whom it is designed, in its power of using, fostering, and giving a legal form to those forces of sentiment and interest which it finds in being. So it has been with the American system. Just as the passions which the question of slavery evoked strained the Federal fabric, disclosing unforeseen weaknesses, so the love of the Union, the sense of the material and social benefits involved in its preservation, appeared in unexpected strength, and manned with zealous defenders the ramparts of the sovereign Constitution. It is this need of determining the suitability of the machinery for the workmen and its probable influence upon them, as well as the capacity of the workmen for using and their willingness to use the machinery, which makes it so difficult to predict the operation of a political contrivance, or, when it has succeeded in one country, to advise its imitation in another. The growing strength of the National government

1 The central government in the Achæan League had apparently a direct authority over the citizens of the several cities, but it was so ill defined and so little employed that we can hardly cite that instance as a precedent.

in the United States is largely due to sentimental forces that were weak a century ago, and to a development of internal communications which was then undreamt of. And the devices which we admire in the Constitution might have proved unworkable among a people less patriotic and self-reliant, less law-loving and law-abiding, than were the English of America.

SUPPLEMENTARY NOTE TO EDITION OF 1910

Though I have made such corrections in the foregoing chapters as are needed to bring the statements made in them up to the present time, it is proper to note here in a concise way certain general tendencies which have affected, and may hereafter more largely affect, the working of the Federal system.

The growth of population, the extension of communications and their larger use both for commerce and for the goings to and fro of the inhabitants, as well as the emergence of new ideas and new needs, have brought about many changes. Three deserve to be singled out as of special importance. (1) The importance of the things which the National Government does, has tended to increase as compared with the things which the States do. (2) Uniformity of regulation over the country has become more needful. (3) In the matters which are regulated partly by the National Government and partly by the States, the inconvenience arising from a division and intermingling of powers has become more evident and more serious.

(1) The army and the navy are larger and more costly than they were; and excite more attention. Questions of tariff more and more affect industry and trade. There is more interest, though perhaps not yet as much as there ought to be, in the conservation of natural resources, including the development of internal waterways, and the control and distribution of water power.

(2) The evils arising from the backwardness of some States, and the boldness or levity of some others, in legislating upon such subjects as child labour, sanitation, divorce, the prevention of accidents in mining and other industries, seem more evident, not because things are any worse than they were, for they are in most respects better, but because the spirit of reform and the humanitarian sympathy which seeks to amend the ills of life have become more active. For instance it is now held regrettable that temptations should be offered to capitalists to establish factories in States where the law gives deficient protection to children or makes the requirements of health and safety less stringent. In those fields of action wherein neither Congress nor the States enjoy complete authority, the want of a power to deal with the whole of a subject makes legislation halting and imperfect.

(3) The regulation of railroads, as respects both their methods of operation and their rates, by one law and one administrative authority seems needed not only in the interest of traders and passengers but in that of the employees, and indeed of the railroad owners themselves, who are harassed by the varying (and sometimes vexatious) legislation

of different States superadded to the legislation of Congress controlling interstate commerce. Whether all railroads should be subjected to Federal legislation, or whether such legislation should be extended only to cover the whole working of railroads doing extra-state business or operating in more than one State, is a further question as to which opinion is divided. There has grown up strong demand for the suppression of all monopolies by general measures. There is a desire to see more control and a uniform control exerted by national law over large industrial and trading corporations. All these convergent wishes and demands represent a tendency which has not as yet found in Federal law and Federal administration a concrete expression proportionate to its strength. The mind of the nation is now awake to these needs and desires, but it is reluctant to depart from the existing boundaries of Federal action and State action. Thus it continues to wrestle with the problem, the difficulties of which lie not merely in the solution to be attained but in the manner of attaining the solution, because there are objections to both the courses which might have to be taken, the course of amending the Constitution and the course of encouraging the Federal courts to effect by interpretation alterations so large as are desired. No one desires to weaken confidence in the fundamental instrument.

Whatever changes may come, and whether they come sooner or later, it is clear that the nation feels itself more than ever before to be one for all commercial and social purposes, every part of it more interlaced with and dependent on all the other parts than at any previous epoch of its history. This feeling, due to influences which have been steadily gaining ground, cannot but have its effect upon political institutions. It does not necessarily portend any menace to the States. Every one feels that they are necessary and must be maintained. But it presages some further extensions of Federal authority.

One new fact which was expected to exalt the majesty and strengthen the power of the National Government has so far made little if any difference - I mean the acquisition of transmarine possessions and particularly of the Philippine Islands, which are immediately dependent upon that Government, and bring it into relation with new foreign problems. These conquests are too relatively small and too distant to occupy the thoughts of the people. The lustre of the National Government has not been visibly enhanced by its control of the new possessions, and still less has its character as a constitutional government suffered from the fact that it exercises a larger sway than is permitted to it at home. It is not through the so-called "imperial position" which the Government of the United States now holds, nor through the place it has assumed as a world power, but rather through the internal causes above referred to, that the forces which make for the unification of the country seem to be working. Yet in one respect the war with Spain did contribute to the strengthening of a sentiment of unity, for it obliterated the relics of sectional antagonism which had lingered on from the days of the Civil War. Soldiers from the North and soldiers from the South fought side by side in Cuba under one flag.

CHAPTER XXXI

GROWTH AND DEVELOPMENT OF THE CONSTITUTION

THERE is another point of view from which we have still to consider the Constitution. It is not only a fundamental law, but an unchangeable law, unchangeable, that is to say, by the national legislature, and changeable even by the people only through a slow and difficult process. How can a country whose very name suggests to us movement and progress be governed by a system and under an instrument which remains the same from year to year and from century to century?

By the "Constitution" of a state or a nation we mean those of its rules or laws which determine the form of its government, and the respective rights and duties of the government towards the citizens and of the citizens towards the government. These rules, or the more important among them, may be contained in one document, such as the Swiss or the Belgian Constitution, or may be scattered through a multitude of statutes and reports of judicial decisions, as is the case with regard to what men call the English Constitution. This is a distinction of practical consequence. But a still more important difference exists in the fact that in some countries the rules or laws which make up the Constitution can be made and changed by the ordinary legislature just like any other laws, while in other countries such rules are placed above and out of the reach of the legislature, having been enacted and being changeable only by some superior authority. In countries of the former class the so-called Constitution is nothing more than the aggregate of those laws - including of course customs and judicial decisions which have a political character; and this description is too vague to be scientifically useful, for no three jurists would agree as to which laws ought to be deemed political. In such countries there is nothing either in the form of what are commonly called constitutional laws, or in the source from which they emanate, or in the degree of