OF A WRITTEN CONSTITUTION. 215 scending ordinary rules, is yet essential to the public safety at a critical period like that of the late civil war, or compel Congress to choose between sacrificing the republic to the Constitution, and violating the Constitution in order to preserve the republic. Such are some of the evils incident to a written Constitution. Do they outweigh the benefits? Is it well to guard against the abuse of power by restrictions that may render it impotent for good? The inquiry is one of the most important that can occupy the mind, and may soon be the material difference between government as it exists in England and as it exists here. The advantage has not in the hour of trial been always on our side. Where the strict letter of the law prevails, both letter and spirit may sometimes be disregarded. Necessity has compelled us to violate rules where Parliament would simply have declared an exception. Nor is this all; in the wish to excuse a disregard of constitutional restraints in cases where they could not be observed consistently with the public safety, men have become special-pleaders, casuists, or, worse still, have learned to undervalue the principles on which such rules depend. Time only can solve the problem; and experience may yet show that the success of the English Constitution is due to the peculiar and complex nature of the House of Commons, which, instead of being the mere exponent of a numerical majority, represents various and conflicting interests and all the different orders of society. It is therefore not so much a single power as a combination of various powers to constitute a whole, and has within itself a system of checks and balances which make up for the want of restraint from without. If a single and uneducated class should at any future period predominate, and, ignoring the traditions by which Parliament has so long been influenced, decide every question as it arises according to the passions and impulses of the hour, the want of the restraining influ 1 This can hardly be said of the House of Commons as at present constituted; and the capacity of a popularly elected assembly for government is now fairly under trial for the first time in political history, and will be tested by its results in England and France. ence of a written Constitution may be severely felt, and the people of the United States have an additional reason for adhering to the method chosen by their forefathers. It is proper to observe that if written guaranties are needed against popular error or the violence of parties, we should sedulously maintain the constitutional supremacy of the General Government. But for this check the people of a State would, when duly assembled in convention, have the legal omnipotence of Parliament, with a consciousness of physical and numerical superiority which must be wanting in an assembly not chosen by universal suffrage, and where various classes are represented and restrain each other. Such a convention is an absolute democracy, acting without check of law, which might, and if the theory of secession is sound may, sweep away all the safeguards that protect the life and property of the citizen, or alter the form of government by placing despotic power in the hands of one or of many persons. In Pennsylvania it is not necessary to go through the ceremony of assembling a convention. A resolution adopted by two successive legislatures and ratified by the people, may, if the Constitution of the United States does not forbid, subvert the independence of the executive or judiciary, take the land of A and bestow it on B, or inflict capital punishment on an individual without a hearing. Such instances were not infrequent during the Confederation, and were among the causes which led to the adoption of the Constitution of the United States.1 Although the prohibitory clauses of that instrument were limited to certain points, they still put a salutary check on the States; and the Fourteenth Amendment gave an additional safeguard of the highest value by making the time-honored provision of Magna Charta, — that no man shall be deprived of life, liberty, or property save by due process of law, a restraint on State legislation. But for the prohibition of laws impairing the obligation of contracts, good faith would have been repeatedly and grossly violated under the cover of State legislation; and the re 1 See Governor Randolph's Speech in the Virginia Convention, 3 Elliott's Debates (2d ed., Phila., 1876), 66. OF A WRITTEN CONSTITUTION. 217 straints imposed by the Constitutions of the several States. might be too weak in many other particulars if the Constitution of the United States did not add its guaranty. No such measure as that by which the Irish tenants were recently converted into owners at the expense of the landlords, and which will in all probability be a precedent for similar legislation in Great Britain, is therefore practicable on this side of the Atlantic without obtaining the assent of three fourths of all the States to an abrogation of the clauses in the Federal Constitution which protect the right of property, and place it on a basis that cannot be shaken by a merely popular vote.1 1 The course of events in France would seem to indicate that a democracy such as France is, and England may before long become, is unsuited to parliamentary government, and requires the restraint of a written Constitution; and this seems to be the opinion of Goldwin Smith, as given in an able article in the Contemporary Review for March, 1885 (ante, p. 178). LECTURE XIV. The English Constitution (concluded).—The Executive chosen in England by the House of Commons. Incompetency and Failure of the Electoral College in the United States. — Their Place filled by Irresponsible Conventions which nominate, and in the Majority of Instances practically elect. Patronage a Controlling Influence in the United States, as it was formerly in England. - The Primary Elections, which determine who shall be Candidates, not regulated by or known to the Law, and not attended by the Great Body of the Citizens. - The Caucus and its Effects. Civil Service Reform in England and America. IT results from the above sketch of the practical working of the English Constitution that a principal, and perhaps the most important, function of the House of Commons is elective, to designate the persons who are to fill the executive department of the government and exercise the powers which the Constitution of the United States confers on the President. This is not effected by a formal vote. Certain men come to the front and are recognized as having the ability or influence to act as leaders, and when a crisis occurs they must be taken, because they are the only persons who can control the House of Commons. A result has thus been fortuitously attained which the framers of our government sought to produce by means which have proved conspicuously inadequate. They knew that a numerous and popular constituency may have a common purpose, but cannot, save in rare and exceptional instances, form a deliberate judgment as to the means by which its will can be carried into effect, or the persons who are best fitted to execute it. As the people must legislate through representatives, and interpret the law through judges, so they should not act personally and directly in choosing a chief magistrate. If such a power is conferred, it will slip from the popular grasp and THE ELECTORAL COLLEGE. 219 be used by demagogues for selfish and ambitious purposes. The Convention sought to overcome the difficulty by an ingenious expedient. The people of the United States could not reasonably be expected to fix on a man having the gravity, dignity, and matured experience requisite for a President of the United States. Such qualities raise their possessor above the common level, and tend to segregate him from his fellows. Moreover, the inhabitants of the various sections would have their local preferences, and could not readily confer together or unite upon the candidate best fitted for such an exalted post. It seems, however, to have been taken for granted that if the masses were incompetent for such a task, the several States would have no difficulty in selecting men in whose wisdom they could confide, and who would exercise a sincere and unbiassed judgment. The soundest statesmen, the best-read lawyers, the most experienced men of business, would be chosen as electors, and would, after mature deliberation in their respective colleges, fix on some individual whom public opinion could not but approve as worthy of the first place in the Republic. This elaborate contrivance is, as you are well aware, frustrated by pledging the electors to vote for the candidate of the party to which they belong, and which uses them as its instruments. So entirely is this the paramount, though unwritten law, that if they were to exercise their judgment in accordance with the letter and spirit of the Constitution, the act would be universally regarded as an outrage, and might lead to civil war. Usage has thus, in less than a century, abrogated an organic statute which was intended to be an integral part of the framework of the government, and insusceptible of change except through a constitutional amendment. The assemblies to which the choice of a President properly belongs having thus virtually ceased to exercise their powers, these devolve on the politicians on either side, who meet in convention and designate the persons among whom the American people must select a chief magistrate. The limitation is as real as if it were written in the Constitution, because the citizen who gives his suffrage to any other candi |