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she is old England still; but the fact cannot be overlooked that into the earliest shaping of our institutions there entered elements not of English growth, elements that were not subordinate and evanescent, but controling and permanent. We brought from England, it is trụe, the grand distinguishing feature of modern society, the representative system, but how altered and expanded from the narrow notions of a privilege conferred by royal grace on certain favored corporations was the right here so soon asserted as inseparable from every local municipality. In that one step, from a privilege to a right, was involved the immense transition from the middle ages to modern times. The first perpetuated a class, the second proclaimed the existence of a people.
When, in the following century, the colonies contended, that representation and taxation were inseparable, though they claimed to be standing on the platform of old English liberty, yet it was evident that they asserted a theory of representation unknown to English law. The clearest judicial mind then living, Lord Mansfield, saw the difference, and in his place in the House of Lords, he declared that the claim of the colonies, if grounded in right, went to the whole constitution of the British Empire. As a lawyer, Lord Mansfield's position was impregnable, for English representation from the beginning was prescriptive, the representation of classes, and, to-day, England is struggling for what America, from the beginning, has enjoyed, a true representation of the people.
Nor need we search far for the source of this new character which representative institutions here as-. sumed. The elder Adams, in a letter to the Abbe de Mably, in 1782, declares that the characteristic feature
of New England institutions, which more than anything else gave an impulse to the revolution, was the system of town government. But the New England towns were the children of the New England churches, the distinctive characteristics of the civil being derived from the ecclesiastical democracy. If, therefore, we would know whence come the distinctive principles that have moulded the New England character, and which, issuing from New England, have done so much to shape the 'political institutions of the new world, we must go back, not to the common law, not to the writs of Simon de Montfort,but to the mighty dialectics of a French refugee, who, from his asylum amid the Alps, with a zeal consuming as Loyola’s and a logic daring as Rousseau's, scattered the firebrands of revolution in the disguise of divine decrees. It is a memorable fact that the political institutions of this country thus received their most energetic impulse, not from England, but from France; and the abstract, ideal stamp then impressed upon them has not been effaced to the present day.
This abstract, ideal tendency that so much marks American political ideas from the traditional, prescrip. tive character of English liberty, is shown in the first assertion of that Declaration which has been read to us to-day, an assertion once hastily condemned by a famous New England orator as a “glittering generality,” but which, he should have known, was old as the jurisprudence of the Antonines, affirmed, indeed, by the Roman lawyers as a mere legal maxim, but taken up and expanded by the great French jurisconsults, till a legal rule was clothed with the force and influence of a social principle, and passing from the hands of lawyers to the hands of scholars, became a principle of politics which
promises, at the present time, to modify more power-
The study of our institutions has been legal rather than historical. The lawyer, I know, may urge that we sacrifice the chief advantage of a written constitution if we do not observe the letter. But in politics, as in religion, the letter often killeth. To the legal training of George Grenville, Burke attributed, in great part, that blindness as a statesman, which did so much to precipitate the American Revolution. The ship of State can never be safely steered by slaves to precedent.
In every country possessing a written constitution, there must be besides, an historic or providential constitution, and nothing can be more certain than that the former will never adequately express the latter. Nay, the written may not only fall short of, it may contradict the unwritten. The articles of Confederation, for example, were a written constitution, but they not only did not embody the actual living constitution that had
controlled the united action of the colonies, they virtually subverted it. The colonies were less a nation under the articles of confederation than they had been while owning a common allegiance to the British Crown. Their inchoate nationality was only marred and defaced by that miserable makeshift, the child of narrow, local jealousies, which served no other purpose than to make them sigh for the unity they had thrown away.
The written Constitution may exist or not. It may be amended or set aside. It is a human work, the attempt of men to give legal expression to a general fact. But the providential constitution must exist. It is the nation's organic life. It grows with the nation's growth and strengthens with its strength, and no written constitution can have any worth, or can endure for any time, unless the unwritten infuses itself into it.
“There is a mystery in the soul of State,
Let me not be understood to detract from the value or authority of a written constitution. Foreigners have wondered why we were willing to make such sacrifices and shed blood so freely for a piece of paper. They little realize the intensity of that inbred reverence for Law, which with us amounts almost to a religion. We can never estimate too highly an instrument which is, beyond question, the most refined product of political wisdom the world has ever seen, and the successful establishing of which Lord Brougham himself, in his better days, before a soured and querulous old age had darkened the windows of his mind, declared to be “the most important event in the history
of our species.” But the Constitution is not the State.
The maxim is often uttered, great jurists have given it their endorsement, that ours is a government of laws and not of men. John Adams calls this maxim the very definition of a Republic. When set up as a stay to hasty or illegal action, the maxim is a most sound and wholesome one. For it is unquestionably true that with reference to any private action the law is sovereign. The organic claims allegiance from the individual will. But the maxim ceases to be true when applied, not to one individual, but to the whole body politic. Here, not the law, but the people, is supreme Not the government, but the State, under God is sovereign. “In the political order,” says Mr. Brownson,“ the fact precedes the law. The nation holds not from the law, but the law holds from the nation.”
For the public weal the people may adopt certain rules by which to regulate their action. These rules, until regularly amended or repealed, are the supreme method. Long as they remain in operation, they justly claim of every citizen, not obedience simply, but rev. erence and honor; but to say that the law governs, is to confuse the fundamental principles of a free society “ It is certain," says one of the clearest political reason ers of our day, the late Sir Cornewall Lewis, “ that in every sort of government the sovereign power must be legally unlimited; and that every government must be conducted by men.” To surrender this fundamental principle, would be to exchange the progressive political development of Europe for the torpor of Mohammedan rule. To have first recognized this principle constitutes our distinction as a nation.
We have, in fact, suffered our instinct of nationality to become weakened by fixing our eyes too much on