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cxcrcise his faculties compatible with the possession of like liberty by every other man; that " a Democracy is a political organization modelled in accordance with the law of equal freedom," and that “ of all institutions which the imperfect man scts up as supplementary to his nature, the chief one must have for its office to guarantee his freedom."
Out of the principle of compact sprang this constitutional safeguard of liberty. Making government rest upon consent, it made a condition of such consent protection of an individual or minority in certain rights against the dohinant power, be it king, parliament or a majority. A sovereign people consented to limitations on the exercise of its sovereign will.
Controlled by these two principles, every American constitution embodics two fundamental ideas a frame of government and body of liberties—the one to provide for the full exercise of power by a majority, except as limited by the other to guarantee the frce exercise of rights by the minority. I need but briefly refer to the detailed provisions, for my purpose is not to enumerate the contents of a constitution, except as may be necessary to illustrate its sphere and function. They are clearly stated in the Massachusetts constitution of 1780, which was the type substantially followed by other states. The frame of government naturally provided for three distinct and independent departments—legislative, executive and judicial. This was in accord with the then widely accepted philosophy of Montesquieu, the authority of Blackstone, the real principles of the English constitution, and with our past experience. In England, at the time of our early constitution making, the three powers had long since ceased to be centered in the king. Out of her experience and cmancipation the French philoso pher and English jurist had evolved and declared the principle that liberty depended upon the separation of these powers. Earnestly believing in self-government and liberty, the framers of our constitutions made the legislative department thoroughly representative, and the all important, responsible branch of a republican government, with power, subject only to constitutional limitations, frequently and fully to enact the people's will. The other two branches, equally necessary and co-equal in
fically stated to include freedom of conscience and worship,
rank, in legal effect were merely agents to enforce legislative action within the sphere of its power. The judicial department could create no right. Its power was limited to the construcmuch hemmed in by law as the humblest criminal in the dock. Equally limited in its scope was the power of the executive law. The three departments were independent, each supreme department to supervise the administration and enforcement of within its jurisdiction, and yet the law making power was clcarly and designetly the dominant branch of government. frame and scope of government, susgest control rather than
These necessary powers of a constitution, determining the liberty, however representative our institutions. Government compels submission to its authority, but its compulsion also necessitates a guaranty of protection, especially against the arbitrary action of any of its departments. We need not base this guaranty on Rousscau's theory of a social contract where "allegiance was agreed to be exchanged for protection ; which "admits the right of the citizen to adopt a condition of voluntary outlawry." We claim it through our Anglo-Saxon constitutional law had reached the definite point that popular
At the time of our national independence the evol ution of rights, as against the ruling power, could only be intrusted to sary in a popular government vested in a majority as one more absolute character. Such guarantees, therefore, These are more fully set forth in the constitution of NIassa.
· the right or enjoying and defending life liberty, of acquiring, possessing and protecting property; in finc of sccking and obtaining safety and happiness," and speci.
tion of written or unwritten law. The highest jndge
de it as
were ed what lienable
trial by jury, right of petition and self-government, freedom of debate and the press, freedom from improper arrest and martial law, right to conpensation for property taken for public uses, and other rights equally familiar.
To these provisions, establishing government and guaranteeing rights, were added certain fundamental duties of govern ment to its constitucncy, which were clearly and universally recognized as necessary to secure public safety and happiness, and so were imperatively cnjoined upon the sovereign power by the organic law, as e. g., the duty of cherishing public schools and the interests of literature and the sciences.
These general principles and provisions cover the whole scope and extent of our early constitutional law and clearly point out its limitation, and the lines of its progress and development. They Icave great latitude to the people for legislation ; and seem to recognize almost as a third great principle of constitutional law, certainly as a dcduction from the principle of compact and self-government the right of the people frequently and casily to change their laws. This is expressly declared in the constitution of Massachusetts. It means that as needs appear and the state develops, as new policies or beliefs are accepted by the people or, in its own, words. “as the common good may require " there shall be opportunity to make them law. As the occasion arose, there was to be unrestricted power to deal with it. The constitution was not like a rigid creed to be a barrier to shut out "the more light " which marks the progress as well of society as religion ; nor yet was it to be as changeable and unstable as the legislative will. But broad in its scope, without unnecessary restrictions, general, expansive in its principles, simple and terse in its provisions, it was in fact to be permanent, fundamental law, rather than a restraint upon legislation, or itself legislation, or the instrument to enforce the will of temporary, fleeting majorities. It was to establish the lines of government rather than do the work of governing; that was left to the instruments it created.
This limited sphere of organic law is clearly seen in our national constitution. It created a government of specified
powers granted by thc states, but absolute within their scope. In the statement of these powers and in guarding individual and state rights, it closely followed the form and primal principles of the earlier state constitutions. It does not undertake to legislate or to limit legislation except of states where neces. sary for national supremacy ; but is content in terse and comprchensive language to establish a frame of government, define its powers and then declare its body of liberties. In less than thirty words it created our whole national jndicial system, not by elaborate specification, but by grant of ample authority to its legislative branch. In cight words it established the admiralty and maritime jurisdiction of its courts, giving by the very absence of detail the power to its judicial department to mect the pressing exigencies of the country and its progress, and, by magnificent judicial evolution, to broaden this exclusive jurisdiction from the ebb and fow of the tide, so as to cover every league of navigable water within our continental domain.
It would be easy to multiply similar illustrations from national and state constitutions, showing their purpose to be on broad lines to establish government and safeguard rights, leaving detail and enforcement to legislation, and the people free to act through their representative institutions under a limited restraint; and recognizing the fact that the needs of a progressive social organism can better bc met by freedom from constitutional limitation than by constant constitutional change.
The unwritten constitution of England, wholly under the control of a sovereign Parliament, flexible, expansive, yet with permanent principles and rights, has readily, safely permitted a growth and change of institutions with the progress of the nation, even cnabling her in 1832, " to carry through a political revolution under the guise of legal reform." While in England, as Mr. Diccy points out,“ laws are called constitutional because they refer to subjects supposed to affect the fundamental institutions of the state, and not because they are legally more sacred or difficult to change than other laws,” and while with us. both tests are present, but the latter supreme--yet there and here the truth has been recognized
that "the endeavor to crcatc laws which cannot be changed is an attempt to hamper the exercise of sovereign power ;" and SO “tends to bring the letter of the law into conflict with the will of the really supreme power in the state." We obviate this difficulty, not by putting our constitutions within the control of the legislative power, trusting only to its conservatism to uphold fundamensal rights and principles, but reserving these with reliance on a supreme judiciary for their maintenance, we have found safety and growth by giving the people ample power to legislate, and yet have insured the stability of rights and institutions.
Our national constitution is an excellent illustration of the success of this policy. Its system of constitutional government, with its comprehensive general principles and broad powers sufficiently elastic to allow of expansion by proper construction, yet sufficiently distinct to be effective and protective, has stood the test of more than a hundred years, carried us through foreign wars and civil conflict, adequately met a phenomenal increase of population, wealth and area, with its new and momentous questions, skilfully adjusted the delicate relations between state and nation, and governed as efficiently 70,000,000 of people scattered through forty-four states, reaching from occan to occan, as the small population of the narrow coast line which embraced its thirteen original constituents. Yet during ninety years of this marvellous growth and change, it has required no amendment except to make permanent the grand results of the civil war. Speaking of this act of the sovereign power of the United States, says Dicey : " It needed the thunder of civil war to break his repose, and it may be doubted whether anything short of impending revolution will ever again arouse him to activity." If so I may add it will not be because “ the monarch slumbers," but because he is contented, Admirably has the national constitution fulfilled its purpose
“to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty," all proper, necessary constitutional duties. Its success has demonstrated that a constitution, to be efficient and