THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 RIVERSIDE 
 
 GIFT OF 
 
 Dr. Cordon Wat kins
 
 all 
 
 ESSAYS ON GOVERNMENT 
 
 A: LAWRENCE LOWELL 
 
 BOSTON AND NEW YORK 
 HOUGHTON, MIFFLIN AND COMPANY 
 
 prcsa, 
 
 1890
 
 G 
 
 Copyright, 1889, 
 BY ABBOTT LAWRENCE LOWELL. 
 
 All rights reserved. 
 
 The Riverside Press, Cambridge, Na*s.,U. S. A. 
 Electrotyped and Printed by II. O. Iloughton & Co.
 
 CONTENTS. 
 
 PAGE 
 
 INTRODUCTION 1 
 
 I. CABINET RESPONSIBILITY AND THE CONSTITUTION 20 
 II. DEMOCRACY AND THE CONSTITUTION ... 60 
 
 III. THE RESPONSIBILITIES OF AMERICAN LAWYERS 118 
 
 IV. THE THEORY OF THE SOCIAL COMPACT . . 136 
 V. THE LIMITS OF SOVEREIGNTY .... 189 
 
 INDEX . . 223
 
 ESSAYS ON GOVERNMENT. 
 
 INTRODUCTION. 
 
 Jusqu'a present, je n'en ai guere trouve" qu'un fprincipe po- 
 litique], si simple qu'il semblera pu^ril et que j'ose a peine 
 1'enoncer. ... II consiste tout entier dans cette remarque qu'une 
 soci^te humaine, surtout une societe" moderne, est une chose vaste 
 et compliqu^e. TAINE, Les Origines de la France contempo- 
 raine : La Revolution, vol. ii., Preface. 
 
 ANY one who attempts to study a carpet 
 loom, or even an ordinary steam engine, when 
 at rest, will find its mechanism hard to under- 
 stand. He may examine the several parts ; 
 note their size and shape, and the materials of 
 which they are made ; but unless he watches 
 them in motion he will not easily appreciate 
 their bearing upon one another, or their func- 
 tions in the working of the machine. The 
 same principle applies to the study of politics, 
 for the real mechanism of a government can 
 be understood only by examining it in action. 
 It has, indeed, been far too common to study 
 the constitutions of various countries statically, 
 if I may use the term ; and this has led to a
 
 2 ESSAYS ON GOVERNMENT. 
 
 habit of describing the nature, composition, 
 and powers of the different factors in the gov- 
 ernment without seeking to know the actual 
 scope of their several operations, or the extent 
 of their control over one another. Such a 
 method of proceeding is very much like ex- 
 amining the parts of a steam engine separately, 
 and describing the piston, for example, as a 
 bar of steel so many feet long and so many 
 inches in diameter, without referring to the 
 fact that it works only in and out of the cylin- 
 der and owes its motion to the head of steam. 
 It was the study of the British government in 
 its actual working which led Bagehot to remark 
 that while the nature and legal attributes of 
 king, lords, and commons had been correctly 
 described, their functions were entirely miscon- 
 ceived. He saw that the crown, while still 
 possessing in the eye of the law all the powers 
 formerly ascribed to it, had long ceased to use 
 them at pleasure, and, like the piston of the 
 steam engine, was guided and controlled by 
 other forces. 
 
 A knowledge of the actual working of a 
 political system is essential, therefore, in order 
 that its real mechanism may be understood. 
 This is the first step in the study of a govern- 
 ment; but it is only the first step, because a 
 political system is not a mere machine which
 
 INTROD UCTION. 3 
 
 can be constructed on any desired plan, and the 
 parts of which can be adjusted according to the 
 fancy of the designer. It is far more than this. 
 It is an organism ; and in order to appreciate 
 its possible forms and the causes of its develop- 
 ment, stability, or decay, it is necessary to in- 
 vestigate the laws of its organic life. The my- 
 thology of the ancient world is crowded with 
 strange beings of all conceivable forms, half 
 bird, half beast ; half man, half fish or brute. 
 These creatures were made by putting together 
 in one body the members of different animals, 
 and were supposed in this way to combine their 
 various advantages. A being was thus imag- 
 ined which could run like a horse and fly like a 
 bird, or use its hands like a man ; but a zool- 
 ogist would have no hesitation in pronouncing 
 all such creatures impossible, because the pres- 
 ence in their bodies of one set of organs would 
 prevent the existence, or at least the effective 
 service, of the others. 
 
 Perhaps this can be made clearer by an illus- 
 tration from astronomy, a science which, in the 
 present condition of our knowledge, is far more 
 exact. Here again the ancients were not afraid 
 to take liberties with nature, for when a hero 
 died they were in the habit of creating in his 
 honor an appropriate star ; but an astronomer 
 would tell you that such conduct would infal-
 
 4 ESSAYS ON GOVERNMENT. 
 
 libly disturb the peace of the sky. He would 
 tell you that a new planet would attract, and 
 be attracted by, all the older ones, and would 
 modify the course of every one of them. He 
 might even be able to calculate the perturba- 
 tions that would result in the celestial orbits, 
 but in any case he would tell you that the path 
 of every star would change until the universe 
 adjusted itself to a new equilibrium of forces. 
 All this is no less true of the life of political 
 bodies than it is of the march of the stars, be- 
 cause a government is an organism whose vari- 
 ous parts act and react upon one another ; and 
 it follows that a change in any one of them 
 will cause changes more or less great in all 
 the others until the system settles down with 
 a new balance of forces. In order to under- 
 stand the organic laws of a political system, it 
 is necessary to examine it as a whole, and seek 
 to discover not only the true functions of each 
 part, but also its influence upon every other 
 part, and its relation to the equilibrium of the 
 complete organism. 
 
 It is in the light of this conception that I 
 have tried to study the government of the 
 United States in the first three of these essays. 
 I have, however, confined my attention mainly 
 to a single point of view, that of the limitation 
 of legislative power and the protection of pri'
 
 INTRODUCTION. 5 
 
 vate rights ; and even from this point of view 
 I have not attempted anything like a systematic 
 treatise, but have ventured only to touch upon 
 some of the more prominent features of the 
 subject. These essays were, in fact, written at 
 different times, and their method is therefore 
 fragmentary ; but as I have thought it better 
 to leave them in their original form, it may 
 not be improper to say a few words to explain 
 them, and to point out their connection with 
 each other. 
 
 In the first essay the English and American 
 forms of government are compared, for the 
 purpose of showing that their natures are radi- 
 cally different ; and an attempt is made to prove 
 that cabinet responsibility, that central feature 
 of the English system, is not in harmony with 
 our institutions, and could not be introduced into 
 the United States without destroying the entire 
 fabric of the constitution. It would not have 
 been out of place to discuss in this connection 
 the suggestion so often made here, of giving to 
 cabinet officers seats in Congress without votes. 
 But the question of their having votes or not is 
 really quite entirely immaterial, so far as the 
 general effect on the form of our government is 
 concerned, because ministerial responsibility can 
 exist as completely when the cabinet officers 
 have no votes as when they are for all purposes
 
 6 ESSAYS ON GOVERNMENT, 
 
 members of the legislature ; and evidence of 
 tliis may be found in several of the parliamen- 
 tary governments on the continent of Europe. 
 It would be possible, I think, to show that this 
 plan would either result in a full-fledged re- 
 sponsible ministry, or produce little or no ef- 
 fect, whether for good or for evil, and result in 
 nothing at all. The advocates of such a change 
 claim for it all the advantages without any of 
 the perils of cabinet government, whereas it 
 is clear that none of the benefits they expect 
 from it such as a close cooperation of the 
 legislature and the executive ; a recognized 
 leadership in Congress ; a centralization of 
 political responsibility in the hands of a few 
 men, or rather of one group of men, whose 
 motions the nation can easily follow, and upon 
 whom it can pass judgment at a stroke, none 
 of these results could be obtained unless the 
 cabinet officers in taking their seats became 
 the responsible leaders of Congress in the strict 
 parliamentary sense. A discussion of this ques- 
 tion would, however, throw little additional 
 light upon the nature of our political system ; 
 and I speak of it here because the essay has 
 been criticised on the ground that I had mis- 
 understood this suggestion, and wasted powder 
 in attacking a proposal which had never been 
 made, at least never in a practical form.
 
 INTRODUCTION. 7 
 
 In the second essay the English and Ameri- 
 can forms of government are further compared, 
 but in a somewhat different manner. The 
 effect that each of them is adapted to produce 
 in a democratic country upon the limitation of 
 popular power and the protection of private 
 rights is considered, and from this point of view 
 an inquiry is made into the structure of our 
 government and the laws of its organic life. 
 
 The third 'essay was originally written for a 
 law review, and treats of the position and func- 
 tions of the legal profession in our political 
 system. 
 
 In the last two essays the limitation of polit- 
 ical power is considered from a philosophical 
 standpoint. The first of these deals only with 
 the theory of the social compact ; but this is 
 almost equivalent to a sketch of the history of 
 modern political philosophy to the end of the 
 last century, because until that time all modern 
 speculation upon government found its expres- 
 sion in some form of this theory, except among 
 those publicists, ever decreasing in numbers 
 and influence, who advocated the doctrine of 
 the divine right of kings. It is therefore a 
 very significant fact that the writers upon this 
 theory are divided into two schools, one of 
 which used it to prove that the power of the 
 state must be absolute, while the other drew
 
 8 ESSAYS ON GOVERNMENT. 
 
 from it the conclusion that the authority of gov- 
 ernment is necessarily limited by the natural 
 rights of individuals; and it is no less impor- 
 tant to observe that these two classes of opinion 
 do not correspond with any bias in favor of 
 monarchy or of popular government. 
 
 The final essay, upon the abstract doctrine 
 of the limitation of sovereignty, is intended 
 chiefly for students of jurisprudence. 
 
 Throughout these essays I have tried to pre- 
 serve a scientific spirit, and to study different 
 political systems, without weighing their respec- 
 tive advantages, or expressing a preference for 
 any of them. For this reason I have avoided 
 all discussion of the merits of that belief in the 
 sacredness of personal liberty and private rights 
 on which the American constitutions are in 
 large measure based, but in the Introduction it 
 does not seem improper to assume a different 
 tone, and to speak freely of the principles on 
 which I conceive that sacredness to rest. In 
 considering the matter, however, it is impor- 
 tant to distinguish between the real basis of 
 this polity and the form which it assumes in the 
 mind of the people ; for these, like moral pre- 
 cepts and the ethical principles from which the 
 precepts are drawn, are very different things. 
 It is the duty of the philosopher, and in fact of 
 every person, to reason out the grounds of his
 
 INTRODUCTION. 9 
 
 system of morals ; but, once established, the 
 morality ceases to be a matter of intellectual 
 speculation, and becomes in the human mind an 
 end in itself. This is, indeed, the form which 
 it ought to take ; for like a mathematical prop- 
 osition, which is first proved and then assumed 
 without further question, a moral precept, after 
 being proved correct, ought to be assumed and 
 acted upon. A man or a nation that went 
 back to first principles, in order to decide each 
 question as it arose, would be very much in the 
 position of an engineer who felt obliged to 
 go through the Pythagorean proposition every 
 time he laid a timber of a bridge. Morality 
 is of little or no practical value until it has 
 reached the stage of conviction; and the real 
 intellectual and moral wealth, the working capi- 
 tal of men or nations, consists of the accumu- 
 lation of principles which they have proved 
 and no longer question. In this manner the 
 sacredness of individual rights is treated in the 
 American constitutions as something absolute 
 and final, but to the philosopher it must be 
 proved. 
 
 Discarding the exploded doctrine of the nat- 
 ural rights of man, and assuming on the con- 
 trary that the system of government which 
 most promotes the moral and material welfare 
 of the community is the best, let us examine
 
 10 ESSAYS ON GOVERNMENT. 
 
 the principles of utility on which the protection 
 of personal liberty and private right depends. 
 The chief of these is the encouragement of 
 individual enterprise and exertion. When De 
 Tocqueville visited America he was struck by 
 the fact that the people, although intolerant of 
 eccentricity in habits, manners, and opinions, 
 admired enterprise in commercial matters ; and 
 while the first of these peculiarities is by no 
 means so marked as it was at that time, the 
 second has left its stamp on the form of the 
 government. The Americans have always be- 
 lieved that by individual enterprise great 
 schemes are started and great inventions made, 
 which increase vastly the wealth of the whole 
 community and result in immense benefits to 
 both ricli and poor. The patent laws spring 
 from this conviction, and they have been a 
 most important factor in the prosperity of the 
 country. Now, for effective development of 
 enterprise, three things are requisite, absence 
 of restraint to the greatest extent that is possi- 
 ble ; confidence on the part of the individual 
 that he will be able to enjoy unmolested the 
 fruits of his labor; and the possibility of calcu- 
 lating the result of a course of conduct so that 
 the projector of an enterprise can foresee the 
 consequences of his actions, and lay his plans 
 accordingly.
 
 INTRODUCTION. 11 
 
 The first of these requisites is evident to any 
 one who reflects upon the subject, for it is pro- 
 verbial that genius cannot work in harness, and 
 that unless it is free to make its experiments 
 and develop its conceptions in its own way it 
 will never produce anything at all. A bureau- 
 cratic system where everything is regulated by 
 the state is certain to be a stationary system ; 
 and if enterprises had to be submitted to the 
 public authorities for approval before they were 
 put in operation, there would soon cease to be 
 any great enterprises at all. Nor is it the pro- 
 jector alone who must be free from restraint, 
 because every scheme or invention which adds 
 materially to the prosperity and welfare of the 
 community involves to a greater or less extent 
 a modification of the conduct and habits of a 
 large number of people; and unless these are 
 free to adapt themselves to the new conditions, 
 the experiment will meet with obstacles at 
 every turn, and will be brought to a standstill 
 before it has developed headway enough to be 
 fairly tried. It is probable that the difference 
 between the stagnant and the progressive 
 periods of the world's history consists less in 
 the absence of men of genius able and willing 
 to make discoveries, than in the reluctance of 
 the community so to change its course of life 
 as to obtain the benefits which a discovery
 
 12 ASSAYS ON GOVERNMENT. 
 
 would bring within its grasp. In a flexible 
 state of society, where people are ready to take 
 advantage of useful innovations, thousands of 
 eyes are all the time watching for new oppor- 
 tunities to make money ; are trying to find 
 something which the public wants, something 
 which will contribute to the comfort or welfare 
 of the community. 
 
 The second requisite I have mentioned is a 
 confidence on the part of the individual that 
 he will be able to enjoy unmolested the fruits 
 of his labor. This supplies the chief stimulus 
 to exertion ; nor can the energy which produces 
 great results be sustained by the prospect of 
 moderate gains alone. It is not uncommon to 
 hear the remark that some person who has 
 made a considerable fortune by his talents has 
 got enough, and has reaped all the profit he is 
 fairly entitled to ; but such an opinion shows 
 an entire misapprehension of the subject. It 
 is the fact that one man in a thousand wins an 
 enormous prize which induces others to struggle 
 on in neglect and poverty ; and there can be no 
 doubt that the talent of the American people for 
 invention is due in large part to the few great 
 fortunes which have been made under the pro- 
 tection of our patent laws. The prospect of 
 large returns is necessary, moreover, to induce 
 capital to embark in hazardous ventures, and
 
 INTRODUCTION. 13 
 
 the great sums of money occasionally amassed 
 are by no means too much to pay for the thought, 
 the labor, the anxiety, and the risk involved, or 
 for the result produced. It has been truly said 
 that the millions which Vanderbilt made were 
 a cheap price to pay for the railroad facilities 
 which he gave to the city of New York ; and the 
 like may be said of Arkwright's spinning-jenny, 
 and of many inventions in more recent times. 
 
 The third requisite for the development of 
 individual enterprise which I have named is 
 the possibility of calculating the result of a 
 course of conduct so that a man can foresee the 
 consequences of his acts, and lay his plans ac- 
 cordingly. The late Professor Benjamin Peirce, 
 in a discourse on the conflict between science 
 and religion, remarked that if God, instead of 
 ruling the world by fixed laws, constantly inter- 
 fered with the course of nature, there would be 
 "no continuity, no possible means of predicting 
 one event from another, no science," no useful 
 arts. Without fixed laws of nature, man would 
 never have emerged from the state of barbarism. 
 If the flight of an arrow were not governed by 
 the inflexible law of gravity, the savage would 
 never have learned to use the bow; and if fire 
 had not been invariably destructive, he would 
 never have learned to control it and make it- 
 serve his purposes. If, in short, the material
 
 14 ESSAYS ON GOVERNMENT. 
 
 world had not been governed by fixed laws, 
 man would never have acquired that power of 
 adapting means to ends which is the very sub- 
 stance of civilization. This principle applies 
 as well to the social as to the material world, 
 and the power to calculate upon the actions of 
 our fellow-men is as essential to the progress 
 of society as the ability to rely upon the con- 
 stancy of natural forces. Now I have seen it 
 suggested somewhere, I think, that amid the 
 complicated relations of modern life, the chief 
 means of determining the future actions of men 
 is furnished by contract. If it were not for a 
 general confidence that people will carry out 
 the agreements they have made, great enter- 
 prises would be impossible, and even the most 
 ordinary business of every day would cease. A 
 society, indeed, which had outgrown the rigid 
 laws of status, and yet was absolutely without 
 contract, would be in much the same condition 
 as a world without friction, where no movement 
 would be possible. It is by means of contract 
 that society has been enabled to attain its 
 present state of industrial and commercial 
 prosperity ; and any serious weakening of the 
 bonds of contract, or in fact any general dis- 
 trust in the strength of those bonds, would not 
 only prevent any further progress, but would 
 soon cause the social fabric to decay. A confi-
 
 INTRODUCTION. 15 
 
 dence that the obligation of contracts will not 
 be violated, together with a belief in the per- 
 manence of vested rights, being a necessary 
 condition of the ability to calculate upon the 
 future conduct of men, is essential to the exist- 
 ence of individual enterprise and to the pros- 
 perity of the cuinumnity. 
 
 We have so far considered the protection of 
 personal freedom and the encouragement of in- 
 dividual energy only from the side of material 
 welfare ; but the moral aspect of the matter is 
 no less important. If we compare the paternal 
 system of government with a social organiza- 
 tion in which the success of each man depends 
 entirely upon his own exertions, we cannot fail 
 to see that the latter fosters the self-reliance 
 and sense of personal responsibility which are 
 the main factors in developing a strong and 
 healthy manhood, while the former has a mani- 
 fest tendency to weaken these qualities, and to 
 sap the vital energies of the nation. Paternal 
 government derives its very name from the 
 fact that it attempts to treat the citizens as 
 children, and keep them forever in leading- 
 strings ; and however well suited such a system 
 may be to an infant or backward civilization, 
 it is utterly incapable of producing a really 
 high development of character in the race. 
 
 The Americans do not look on these matters
 
 16 ESSAYS ON GOVERNMENT. 
 
 from a purely dogmatic point of view. They 
 do not believe in the inherent right of any man 
 to bring up his children in ignorance ; nor do 
 they allow any one to suffer to the uttermost 
 the consequences of his misfortunes. On the 
 contrary, they fit the citizen to enter on his 
 career by giving him an education. They fur- 
 nish him in this way with the means of accom- 
 plishing as much as he can ; and if he fall, they 
 prevent his being ground down beyond hope of 
 recovery. In this last matter they have gone 
 in some of the States too far, no doubt ; so far 
 as to make the collection of debts uncertain. 
 But in spite of injudicious legislation on this 
 and some other subjects, they have not forgot- 
 ten the object of encouraging personal enter- 
 prise ; and their institutions as a whole are 
 perhaps as perfectly adapted to further this 
 object as any mere institutions can be. Of 
 course all civilization of European origin is 
 mainly based on the same principle ; but the 
 patern;il conception of government is. every- 
 where growing very much, for reasons described 
 in the second of these essays, and at the present 
 moment there is a strong tendency to substitute 
 state control for individual exertion. There 
 is no fear of complete socialism anywhere at 
 present, nor would it endure if it were estab- 
 lished ; but steps in that direction have already
 
 I NT ROD U CTION. 17 
 
 been taken, and they are likely to be even 
 more rapid in the near future than they have 
 been in the past. These all entail in some 
 measure the evils of socialism, for they hamper 
 personal energy and encourage people to look 
 to the government for aid, and thus enfeeble 
 the spirit of self-reliance and the sense of re- 
 sponsibility which are the source of all pros- 
 perity and all moral worth. The state regula- 
 tion of labor and wealth proposed by the social- 
 ists would, in fact, be far more discouraging to 
 enterprise than the turbulence and oppression 
 of the democracy of Athens in the days of her 
 decline. The late Professor Bluntschli showed 
 his keen appreciation of the real nature of the 
 aspirations of these men when he said that 
 their Utopia was a world reduced to the condi- 
 tion of a universal house of correction at hard 
 labor. There being in such a state of society 
 no reward for energy, each person would do the 
 smallest amount of work that would satisfy 
 the public authorities ; and the socialist writers 
 themselves really admit the truth of this fact 
 by allowing to the workman, in all their more 
 recent schemes, a certain amount of private 
 property to be earned by his own efforts. 
 
 In considering this subject it is important to 
 distinguish between voluntary and forced co- 
 operation. The former is no discouragement
 
 18 ESSAYS ON GOVERNMENT. 
 
 to enterprise, but, on the contrary, a striking 
 manifestation of it, and an admirable thing 
 so far as it succeeds. Enterprise has indeed 
 been immensely helped in the United States 
 by that class of cooperation which takes the 
 form of corporations. 1 But any universal co- 
 operation must remain an impossibility so long 
 as men are actuated in great part by selfish 
 motives. Society is a collection of human 
 beings, and its structure must be based on hu- 
 man nature. All attempts, therefore, to frame 
 an ideal commonwealth which do not take ac- 
 count of the faults and frailties of mankind 
 are doomed to be failures. The growth in the 
 community of an inductive tone of mind which 
 studies actual facts will, it may be hoped, 
 bring in time more light to bear on social 
 problems ; but in the mean while we are ex- 
 posed to experiments in legislation which may 
 do incalculable injury, and any nation may well 
 congratulate itself whose institutions hinder 
 in some degree movements of this character. 
 When mankind has become perfect, and we are 
 all stirred by single, high, and generous aims, 
 then the system which the socialist yearns for 
 will be possible. Then the millennium will 
 
 1 Some of the more gigantic of these bodies have used their 
 power oppressively, and this is unfortunately a danger which is 
 inseparable from all cooperation on a very large scale.
 
 INTRODUCTION. 19 
 
 come, when there will be no more private prop- 
 erty and all men will work together for the 
 common good. Then the whole creation will 
 live in peace, and men will cease to kill animals 
 for food ; but universal unselfishness is as re- 
 mote as vegetarianism, and as yet there are no 
 signs of the advent of either. Socialism, to 
 be tolerable, must at least eliminate selfishness 
 from the rulers of the state. Better a socialism 
 administered by an intelligent autocrat, who 
 has no personal interest in the regulations he 
 decrees, than one conducted by an unbridled 
 democracy. Far better a Bismarck than a 
 Jacobin Convention. 
 
 We are placed to-day between individualism 
 and paternal government, which deals with men 
 as rigid masses ; and to accept the latter would 
 be a step backward from contract toward 
 status, not an advance in the direction which 
 the world has followed hitherto. Respect for 
 the individual man is one of the chief dif- 
 ferences between modern Europe and the an- 
 cient world, between the progressive West 
 and the stagnant East. Sympathy with indi- 
 vidual suffering, and a conviction of the impor- 
 tance of the individual soul, are the main- 
 springs of our civilization. They are the very 
 essence of Christian itv.
 
 I. 
 
 CABINET RESPONSIBILITY AND THE CONSTI- 
 TUTION. 
 
 "He that goeth about to persuade a multitude, that they are not 
 so well governed as they ought to be, shall never want attentive 
 and favorable hearers ; because they know the manifold defects 
 whereunto every kind of regiment is subject, but the secret lets 
 and difficulties, which in public proceedings are innumerable and 
 inevitable, they have not ordinarily the judgment to consider. 
 And because such as openly reprove supposed disorders of state 
 are taken for principal friends to the common benefit of all, and 
 for men that carry singular freedom of mind ; under this fair and 
 plausible colour whatsoever they utter passeth for good and current. 
 . . . Whereas on the other side, if we maintain things that are 
 established, we have not only to strive with a number of heavy 
 prejudices deeply rooted in the hearts of men, who think that 
 herein we serve the time, . . . but also to hear such exceptions 
 as minds so averted beforehand usually take against that which 
 they are loth should be poured into them." HOOKER'S Ecclesias- 
 tical Polity, book i., chap. i. 
 
 IT is only a few years since the people of this 
 country and of England each assumed as an 
 axiom that their own form of government was 
 the most perfect that human ingenuity could 
 devise ; while the political writers of each 
 nation received the same doctrine very much 
 like a proposition in geometry, a thing to be
 
 CABINET RESPONSIBILITY. 21 
 
 proved, it is true, but a matter of which there 
 could be no doubt, and which needed only a 
 formal demonstration to be readily accepted by 
 every one. All this is so recent that it is not a 
 little surprising, to-day, to hear criticisms upon 
 the form of their own governments by natives 
 of most of the free countries of Europe and 
 America. The sign is encouraging, because 
 the complaints do not come from persons who 
 wish to change the basis of political power, 
 making it more or less- popular, but arise from 
 a conviction that the government in its actual 
 form does not work as well as it should. 
 The most common grievance is that the leg- 
 islature is unable to accomplish the work it 
 ought to do. We hear suggestions from Eng- 
 land that the rules of the houses of Parlia- 
 ment might be changed to advantage ; from 
 France and from Canada, that the system of a 
 responsible ministry is the cause of most of 
 their misfortunes ; while for this country the 
 same system of a responsible ministry is recom- 
 mended as a panacea for all our ills. Now 
 government by a responsible ministry has many 
 unquestionable advantages. It has a great ten- 
 dency to interest and instruct the people ; it 
 conduces to a thorough public discussion of pro- 
 posed legislation ; it turns a flood of light upon 
 every corner of the administration ; and if the
 
 22 ESSAYS ON GOVERNMENT. 
 
 object of government is to divide the people 
 into two political parties, and to give rapid and 
 unlimited effect to the opinions of the majority, 
 no better political system has ever, perhaps, 
 been suggested, provided that the people 
 themselves have no deep-rooted prejudices, 
 founded on religion, on race, or on historical 
 association, to impede their progress. 
 
 But in the United States the object of gov- 
 ernment is looked upon in a very different light 
 from this. It is here considered of the first 
 importance to protect the individual, to pre- 
 vent the majority from oppressing the minor- 
 ity, and, except within certain definite limits, 
 to give effect to the wishes of the people only 
 after such solemn formalities have been com- 
 plied with as to make it clear that the popular 
 feeling is not caused by temporary excitement, 
 but is the result of a mature and lasting opin- 
 ion. This is done, in the words of the Consti- 
 tution of Massachusetts, " to the end it may be 
 a government of laws, and not of men," or, as 
 we should put it to-day, a government by prin- 
 ciples, and not by popular impulse. The result 
 is a complicated and unwieldy form of govern- 
 ment ; a division of powers into legislative, exec- 
 utive, and judicial ; a subdivision of the legisla- 
 tive power between two houses and a president 
 or governor ; and in most of the States a distri-
 
 CABINET RESPONSIBILITY. 23 
 
 bution of the executive power among a large 
 number of officers who are virtually independ- 
 ent of each other. These divisions of power are 
 accompanied by cross-divisions separating the 
 powers given to the federal government from 
 those reserved to the several States ; but the 
 feature of the American system which shows 
 in the most striking manner the attachment of 
 our people to the fundamental principles of law 
 is to be found in the power of the courts to dis- 
 regard an act of the legislature when it violates 
 those rights which have been protected by the 
 Constitution. The notion that legislative power 
 could never infringe private rights was, indeed, 
 carried so far at one time that certain judges 
 assumed an authority to hold a statute invalid 
 if it was repugnant to the common principles 
 of justice and civil liberty, even if it did not 
 conflict with any express provision of the Con- 
 stitution. 1 It is needless to say that such a doc- 
 trine is not law, but the fact that it could be 
 proclaimed from the bench is significant as an 
 indication of popular feeling. 
 
 It is not my intention, in this essay, to dis- 
 cuss the relative merits of the English and 
 American forms of government, but merely to 
 attempt to show that a responsible ministry 
 cannot be grafted into our institutions without 
 
 i See page 169.
 
 24 ESSAYS ON GOVERNMENT. 
 
 entirely changing their nature, and destroying 
 those features of our government which we 
 have been in the habit of contemplating with 
 the greatest pride. 
 
 The essential characteristic of a parliamen- 
 tary government consists in the fact that the 
 cabinet a body comprising all those members 
 of the executive department on whom the pol- 
 icy of the administration depends can remain 
 in office only so long as it receives the support 
 of the legislature. The members of the cabi- 
 net have seats in the legislature, and they are 
 expected to superintend its work, and to pre- 
 pare such bills as they think ought to be 
 enacted. But it is not for the performance of 
 these duties alone that they are responsible. 
 They are liable to be turned out of office if the 
 legislature disapprove of their conduct in mat- 
 ters purely administrative. Mr. Gladstone's 
 cabinet, for example, was no less responsible 
 to the House of Commons for sending Lord 
 Wolseley up the Nile than it was for proposing 
 an increase of the tax on beer, and a vote cen- 
 suring its policy in the Soudan campaign would 
 have caused its resignation no less certainly 
 than a defeat on the budget. The legislature 
 is made familiar with the policy of the ministry 
 in legislative matters by the bills it introduces, 
 but it can also obtain as much information
 
 CABINET RESPONSIBILITY. 25 
 
 about matters of administration as it desires by 
 means of questions addressed to the ministers. 
 It is evident, therefore, that the supervision 
 which the legislature exercises over the details 
 of administration is limited only by the temper 
 of the legislature itself, or, in fact, by the intel- 
 ligence, energy, and strength of the opposition. 
 The legislature has complete power of control 
 over all matters, both legislative and executive, 
 but so long as the cabinet retains the support 
 of the legislature, all the powers of government 
 are virtually entrusted to its care. In the 
 words of Bagehot, the cabinet " is a board of 
 control chosen by the legislature, out of persons 
 whom it trusts and knows, to rule the nation ; " 
 and this, in the opinion of John Stuart Mill, is 
 the most perfect form of government. 
 
 Let us suppose such a system to be intro- 
 duced into the United States, and let us try to 
 discover what effect it would produce upon our 
 institutions. I shall, however, confine the in- 
 quiry to the federal government, for the results 
 in the States would be the same. 
 
 The first matter to be considered is the posi- 
 tion the President would occupy if an amend- 
 ment to the Constitution were to provide that 
 the executive officers should be responsible to 
 Congress ; and let us suppose, to begin with, 
 that the President himself is iriveu a seat in
 
 26 SSAYS ON GOVERNMENT. 
 
 one of the houses. If, in such a case, the 
 President were a man of sufficient ability and 
 force of character, he might become the leader 
 of Congress, and he would then occupy a posi- 
 tion essentially the same as that of the premier 
 in England. He would be his own prime min- 
 ister. This was the situation of M. Thiers 
 when President of the French Republic, for he 
 refused to allow his advisers to become a min- 
 istry in the parliamentary sense, and held him- 
 self personally responsible for the acts of his 
 government. But no matter how great a leader 
 the President might be, such a state of things 
 could last only so long as Congress continued 
 to be of his own party. The moment a Con- 
 gress of the opposite party was elected, he 
 would be obliged either to resign, or to give up 
 all exercise of power, and surrender the govern- 
 ment into the hands of some one who could ob- 
 tain the support of Congress ; because, by the 
 very definition of a responsible ministry, no one 
 can continue at the head of the administration 
 whose policy has been condemned by the leg- 
 islature. Experience shows us how rarely it 
 would happen that a President elected by the 
 people would be capable of leading Congress. 
 If lie were not able to do this, the real leader 
 of Congress and head of the government would 
 be some other member of the administration ;
 
 CABINET RESPONSIBILITY. 27 
 
 and in that case the President would have no 
 more actual power than if he had no seat in 
 Congress, and were not a part of the ministry 
 at all. 
 
 But, in fact, no one proposes that the Presi- 
 dent shall be a responsible prime minister, or 
 have a seat in Congress. The advocates of a 
 parliamentary government go no further than 
 to suggest that the advisers of the President 
 shall sit in Congress, and that they alone shall 
 be responsible to it for their actions. Under 
 such a system the President would remain in 
 office for the four years of his term in any 
 event, while the cabinet officers would retain 
 their places only so long as Congress was y will- 
 ing to allow them to do so. The President 
 would then be obliged to select his cabinet 
 from among the leaders of Congress, for other- 
 wise the administration would be without 
 strength, and in danger of being upset when- 
 ever the men who really commanded Congress 
 should conclude that they wanted cabinet posi- 
 tions for themselves. But it is evident that 
 cabinet officers, who knew that they could not 
 be dismissed without the consent of Congress, 
 and who were at the same time the leaders of 
 Congress and able to control its actions, would 
 find it very easy to carry out their own policy 
 of administration without much regard to the
 
 28 ESSAYS ON GOVERNMENT. 
 
 wishes of the President. They would be called 
 upon, moreover, to explain and defend before 
 Congress the policy of the government, and 
 they could not do this unless that policy were 
 really their own. They would make but a 
 sorry piece of work in defending the acts of the 
 President unless they really approved of those 
 acts, and were willing to assume complete re- 
 sponsibility for them. They clearly could not 
 shield themselves by pleading the orders of the 
 President, because his orders would not be 
 binding on Congress, and such a defence would 
 not prevent Congress from turning the cabinet 
 out, and insisting on a ministry which would 
 fulfill its wishes. Of course the responsibility 
 of the cabinet to Congress would not make the 
 President a figurehead at once. George III. 
 exercised an immense influence over the House 
 of Commons long after the principle of a re- 
 sponsible ministry had become a part of the 
 British Constitution, and in a less degree we 
 should see the same thing here. The tradition 
 of the President's authority would probably 
 enable him to influence politics for a long time ; 
 but as Congress became more and more con- 
 scious of its power, it would control more and 
 more completely the acts of the administration. 
 It would gradually force the cabinet officers to 
 be strictly responsible to itself, and it would
 
 CABINET RESPONSIBILITY. 29 
 
 finally concentrate all powers, both legislative 
 and executive, in its own hands. So long as 
 Congress and the President were of the same 
 political party the process would probably go 
 on slowly ; but it is clear that if a Congress of 
 a party hostile to the President were elected, he 
 would rapidly lose all control of the administra- 
 tion, which would pass into the hands of his 
 political opponents. Mr. Bagehot, while dis- 
 cussing the separation of the legislative and 
 executive powers in this country, and the exclu- 
 sion of our cabinet officers from seats in Con- 
 gress, remarks, " And, to the effectual main- 
 tenance of such a separation, the exclusion of 
 the President's ministers from the legislature 
 is essential. If they are not excluded they be- 
 come the executive ; they eclipse the President 
 himself. A legislative chamber is greedy and 
 covetous ; it acquires as much, it concedes as 
 little as possible. The passions of its mem- 
 bers are its rulers ; the law-making faculty, the 
 most comprehensive of the imperial faculties, is 
 its instrument ; it will take the administration, 
 if it can take it. Tried by their own aims, 
 the founders of the United States were wise in 
 excluding the ministers from Congress." In 
 those countries in which a parliamentary gov- 
 ernment has been introduced, the nominal head 
 of the administration, whether hereditary as in
 
 30 ASSAYS ON GOVERNMENT. 
 
 England, or elected as in France, has gradually 
 lost his political power, and this must, in the 
 nature of things, always take place. Germany 
 may seem to present a striking exception to 
 this rule, but there the cabinet is not in fact 
 responsible, for by means of the vast personal 
 force of Prince Bismarck the emperor has been 
 enabled to keep a strong hold on the reins of 
 government ; but no one can suppose that Bis- 
 marck himself would have been able to treat 
 the Congress of the United States as he has 
 treated the German Reichstag, and even in 
 Germany he has done no more than put off the 
 day he so much dreads, because it will not be 
 possible for his successors to follow in his foot- 
 steps in this matter. 
 
 After considering the position the President 
 would occupy if we had a responsible ministry, 
 one is naturally led to inquire what changes 
 such a system of government would produce 
 upon Congress. That body is now composed of 
 two branches, each of which has not only a con- 
 stitutional right to refuse to enact laws proposed 
 by the other, but has no hesitation in actually 
 exercising its authority. Mr. Bagehot, a strong 
 advocate of parliamentary government, consid- 
 ers such a state of things exceedingly pernicious ; 
 while, on the other hand, the publicists of the 
 last century, and most Americans at the present
 
 CABINET RESPONSIBILITY. 31 
 
 day assert that it is very important, if not ab- 
 solutely necessary, as a check upon popular im- 
 pulse. Let us consider whether the existence 
 of two really independent houses of Congress 
 is possible in a parliamentary government. The 
 cabinet is to be responsible. Responsible to 
 whom ? To the two houses of Congress. This 
 is all very well so long as the houses are of one 
 mind ; but what will happen when they dis- 
 agree ? Suppose that the House of Represen- 
 tatives should continue to support the cabinet 
 while the Senate opposed it, and that the cab- 
 inet refused to resign. The Senate would then 
 have but two courses open to it: either to ham- 
 per the policy of the administration in every 
 possible way, and attempt to force the hands 
 of the cabinet and the House, or to submit; 
 and if it should submit, it would fall in pres- 
 tige, and gradually lose all voice in the control 
 of the administration. When, in such a case, 
 the majorities of the House of Representatives 
 and of the Senate do not belong to radically 
 different parties, a compromise may be ar- 
 ranged, it is true : but if this arrangement is 
 really a compromise, and not a virtual surren- 
 der on the part of one of the houses, the cab- 
 inet will be weak and its policy negative; or if 
 it happens that the cabinet is vigorous and 
 composed of able men, it will play off each of
 
 32 ESSAYS ON GOVERNMENT. 
 
 the houses against the other, and be in reality 
 responsible to neither of them. A ministry can- 
 not be responsible to two chambers. In the 
 long run it must depend upon the support of 
 the stronger one alone, and disregard the action 
 of the weaker. And this becomes more clear 
 when we consider that one of the most impor- 
 tant duties of a responsible ministry is to ex- 
 plain and defend its policy in the chambers, 
 because the ministry cannot really fight its bat- 
 tles in both chambers, for the debates that take 
 place in one cannot be repeated in the other, 
 nor will a part of the debates take place in one 
 and a part in the other. All the important 
 discussions will tend to occur in the chamber 
 which shows the most power, and the chamber 
 in which the debates take place will have the 
 most attraction for men of talent and ambition ; 
 and so the stronger chamber will grow stronger, 
 and the weaker will become weaker, until all 
 authority is centred in the former. Mr. Bage- 
 hot's description of the position of the House of 
 Lords must in time apply to the second cham- 
 ber in any country where the more powerful 
 chamber is not so torn by factions as to be 
 unable to maintain a definite policy of its own. 
 " Since the Reform Act," he says, " the House 
 of Lords has become a revising and suspend- 
 ing House. It can alter Bills ; it can reject
 
 CABINET RESPONSIBILITY. 33 
 
 Bills on which the House of Commons is not 
 yet thoroughly in earnest upon which the 
 nation is not yet determined. Their veto is 
 a sort of hypothetical veto." 
 
 The French Senate appears to be an excep- 
 tion to this rule, for it has a very considerable 
 amount of power, and at times it has not been 
 afraid to defeat the policy of the Chamber of 
 Deputies. The most extraordinary example of 
 this occurred in 1883, when the premier, M. 
 Duclerk, resigned because he could not ap- 
 prove of a bill for the expulsion of the Orleans 
 Princes, which was supported by a majority of 
 the committee of the Chamber of Deputies and 
 by most of the members of his own cabinet. 
 M. Fallieres formed a ministry, and the bill 
 was immediately passed by the Chamber of 
 Deputies ; two weeks later it was defeated in 
 the Senate, and M. Fallieres resigned. M. 
 Ferry succeeded him, and managed to deprive 
 the Princes of their commands in the army 
 under the provisions of an existing statute; 
 but the Chamber of Deputies made no attempt 
 at that time to insist upon its policy of expul- 
 sion. Thus within three weeks two cabinets 
 were wrecked by the same bill : the first by the 
 Chamber of Deputies which supported the bill, 
 and the second by the Senate which refused to 
 pass it. Now this was possible only because
 
 34 ESSAYS ON GOVERNMENT. 
 
 the majority of the Chamber of Deputies, al- 
 though agreed upon the bill in question, was 
 not sufficiently united to be really in earnest 
 in the support of the ministry. The French 
 Chamber is, in fact, so split up into factions 
 that a compact majority is impossible, and a 
 ' committee system unsuited to a parliamentary 
 government tends to increase the difficult} 7 , 
 until every ministry is the result of a sort of 
 coalition. The Chamber tolerates, but never 
 supports, the ministers ; and this is the cause 
 not only of the weakness of the ministries and 
 their uncertain hold of office, but also of the 
 power which the Senate has been able to retain. 1 
 In a parliamentary government the power of 
 dissolving the legislature is almost essential to 
 the smooth working of the system, because a 
 minister who feels that the people are on his 
 side when he loses the support of the house 
 cannot be made amenable to the latter. The 
 ministry looks to the house for support, but in 
 order that the system may work well they must 
 both feel that their policy is in harmony with 
 the will of their constituents, because these are 
 the final judges of the policy of the government, 
 and an election, whether it takes place upon a 
 
 1 Since this essay was written the Senate has steadily lo?t power, 
 until, by failing to take a decided stand of any kind at the time of 
 President Gre'vy's fall, it committed political suicide.
 
 CABINET RESPONSIBILITY. 35 
 
 sudden dissolution or at the expiration of a 
 fixed time, is an appeal to their judgment. 
 From this point of view it is evident which 
 of the two branches of Congress would over- 
 shadow the other and become the centre of 
 power. Every two years, according to the Con- 
 stitution, the entire House of Representatives is 
 elected, and there assembles at Washington a 
 new House in sympathy with the opinions of 
 the people : if, therefore, we had a responsible 
 ministry, the people, in electing the House, 
 would pass judgment biennially upon the acts 
 of the ministry. But only one third of the 
 Senate is renewed within the same period, so 
 that this body is never a very accurate index 
 of the opinions of its constituents. A reelec- 
 tion of a third of the Senators could hardly be 
 looked upon as a verdict upon the acts of a re- 
 sponsible ministry ; and even if the Cabinet 
 were given power to dissolve entirely both 
 branches of Congress, the two houses would not 
 stand upon an equality, because the election of 
 the House of Representatives would indicate 
 the opinion of the people, while the new Senate 
 would represent only the States ; and there can 
 be no question that the will of the people, and 
 not that of the States, would be the decisive 
 matter. The Senate represents the people in- 
 directly ; but while the Hnuso represents their
 
 36 ESSAYS ON GOVERNMENT. 
 
 present wishes, the Senate may be said to rep- 
 resent their more deep-rooted and lasting opin- 
 ions. It is partly to this quality that the Sen- 
 ate owes its power and its usefulness ; but in 
 a parliamentary government an appeal to the 
 people means an appeal to the present opinion 
 of the people, for it can mean nothing else. 
 The elections to the House of Representatives 
 would be the answer to this appeal, and it is 
 the House which would be clothed with the 
 power of the people. 
 
 I shall now boldly assume that the reader is 
 convinced of the truth of all that has been said, 
 and I shall lay it down as a foundation for fur- 
 ther discussion that, if a responsible ministry 
 were introduced into our government, the House 
 of Representatives would acquire the powers of 
 the House of Commons ; that the Senate would 
 occupy a position similar to that of the House 
 of Lords ; and that the President would be re- 
 duced to such a condition that, except for the 
 absence of a pedigree and of crown jewels, he 
 might well be degraded to the condition of a 
 king. I wish now to inquire what effect such 
 a state of things would have upon the relations 
 of the state and federal authorities. In dis- 
 cussing the government of the United States, 
 Mr. Bagehot remarks : " After saying that the 
 division of the legislative and executive in
 
 CABINET RESPONSIBILITY. 37 
 
 presidential governments weakens the legisla- 
 tive power, it may seem a contradiction to say 
 that it also weakens the executive power. But 
 it is not a contradiction. The division weakens 
 the whole aggregate force of government, the 
 entire imperial power ; and therefore it weak- 
 ens both its halves." The converse of this is 
 also true. The union of the legislative and ex- 
 ecutive departments would increase the aggre- 
 gate force of the federal government, would 
 increase its power to accomplish its purposes, 
 and would enable it with much greater ease to 
 encroach on the authority of the States if it 
 should desire to do so. Now it is almost an 
 axiom in political science that the powerful 
 always hunger for more power, and that the 
 ability of one body to encroach upon the au- 
 thority of another is the father of a desire to 
 do so. But this is not all. It is claimed by 
 those who advocate a parliamentary govern- 
 ment for this country that such a government 
 would increase the interest of the people in 
 national affairs; and this in itself is a very good 
 thing; but it must not be forgotten that a con- 
 centration of popular interest means a concen- 
 tration of popular power. If the people become 
 excited over a federal issue beyond a certain 
 point; if they learn to look upon it as a matter 
 of paramount importance, they will endeavor to
 
 38 ESSAYS ON GOVERNMENT. 
 
 give effect to their opinions with all the power 
 that they possess, without much regard for the 
 theoretical rights of the States. We saw an 
 example of this at the time of the civil war. 
 It is a proof of the strength of our Constitu- 
 tion that the war did not produce a far greater 
 centralization than we have witnessed, and that 
 the system has so nearly recovered its equili- 
 brium ; but in spite of its strength the Consti- 
 tution would not stand many strains of such 
 violence. Of course I do not mean to assert 
 that under a responsible ministry the popular 
 excitement would at all compare with what 
 it was at the time of the civil war ; but I do 
 mean to say that national questions would con- 
 stantly assume an importance in the eyes of 
 the people which would entirely overshadow 
 local interests, and that a responsible ministry, 
 armed with the power of public opinion, would 
 bring to bear upon the States a steady pressure 
 which they would be unable to resist. It has 
 been said that the United States is still in its 
 feudal period, and to a certain extent the meta- 
 phor is appropriate ; because j ust as the feudal 
 barons in the Middle Ages presented points of 
 physical resistance to the centralizing ambition 
 of the king, so to-day the States present points 
 of moral resistance to the centralizing tendency 
 of our national government. They form centres
 
 CABINET RESPONSIBILITY. 89 
 
 for the organization of local opinion, and rally- 
 ing points for those who are in a minority on 
 federal questions. 1 
 
 1 It is also to be remembered that the smaller the community 
 which exercises political power, the larger will the individual be in 
 proportion to that community. A member of a small community 
 will find it comparatively easy, therefore, to assert his rights, and 
 the community will find it difficult to trample upon them. 
 
 M. Boutmy, in comparing the governments of France, England, 
 and the United States, imputes the absolutism of the French to the 
 absence of great public corporations. His remarks are so much 
 in point that I venture to quote them at some length (Droit Con- 
 stitutionnel, page 239 et seq.): "En France, il n'y a pas depuis 
 1789 d'autre etre collectif anime d'une vie puissante que la nation, 
 concue dans sa totalitd indivisible. Au sein de la nation il n'y a 
 de consistant que 1'individu. ... La souverainet^ sera the'orique- 
 ment la volonte de tons les citoyens, et pratiquement elle se con- 
 fondra avec la volonte" de la majority nume'rique. ... II n'y a pas 
 de point d'appui en dehors de la majorite, il n'y en a done pas 
 centre elle pour une resistance ou une dissidence qui dure. . . . 
 On a vu qu'en France 1'^quation politique ne comprend que deux 
 ternies: 1'individu et 1'Etat, un infiniment petit et un infiniment 
 grand. . . . L'e'goisme che'tif de chaque citoyen fait seul face a 
 1'inte'ret indivisible et superieur de la nation. . . . Les droits de 
 1'individu, premier theme de la constitution, source reconnue de 
 tout pouvoir legitime, palissent trop souvent pendant cette seconde 
 phase et s'effacent devant cette ide'al usurpateur. L'intempe'rance 
 legislative et re'glementaire du Parlement et des pouvoirs publics, 
 1'existence et 1'activite exage>ee d'une justice administrative oil 
 1'Etat figure comme juge et partie, sont les deux fails qui accusent 
 le plus surement ce penchant a subordonner et ii humilier I'int( 5 r6t 
 ou les liberty's privies, et a fonder le despotisme consciencieux de 
 rinte>et public. L'Angleterre, et, dans la sphere fe'derale, les 
 Etats-Unis, ont moins souffert qne nous du premier de ces maux; 
 ils ont e'chappe' au second. 
 
 "Ces deux pays ont du en effet a I'importance et au prestige des 
 grandes personnes morales qui out precede et cree" leurs constitu- 
 tions, de ne pas connaitre jusqu'ii present cette antithose heurte'e 
 de 1'Etat et de 1'iudividu, cette oscillation sans arret intermediaire,
 
 40 ESSAYS ON GOVERNMENT. 
 
 We have not yet considered the effect of a 
 responsible ministry upon the most vital part 
 of our government, the part on which the whole 
 system hinges, and that is the authority of the 
 courts. Their power to disregard a statute 
 which violates the provisions of the Constitu- 
 tion is the barrier that preserves the limits of 
 the different forces in the government, that pre- 
 vents gradual and unobserved encroachments, 
 and makes it possible to maintain a system of 
 divided sovereignty. To European statesmen 
 this power of our courts is a standing wonder, 
 but to the American it is the obvious and natu- 
 ral result of a written constitution. It is, in 
 fact, the logical consequence of a limited form 
 of government. Suppose a legislature invested 
 witli only a limited authority. Any act out- 
 side that limit is unauthorized, ultra vires,- as 
 the lawyers would say, that is, beyond the 
 powers of the legislature, and has no force. 
 Every one may disregard it, for it is entirely 
 invalid, and clearly the courts cannot give it 
 
 qui releve et fait dominer alternativement les drolls de 1'un et la 
 haute mission de 1'autre. Un autre probleme a retenu dans une 
 region mo3*enne 1'attention des constituants et les a empeche de 
 glisser sur la pente vers ces deux questions extremes, c'est celui 
 d'une balance a e"tablir entre des puissances pre"existantes." 
 
 He adds later that this is ceasing to be true of England. It is 
 only fair to say that M. Boutmy considers the absolutism of 
 France to be a higher form of civilization than the decentralization 
 of the United States.
 
 CABINET RESPONSIBILITY. 41 
 
 any effect. 1 Inasmuch as the legislature rep- 
 resents the people, and, in the States at least, 
 the very same people who establish the Consti- 
 tution, it may seem strange that they should 
 limit the power of their own representatives ; 
 but it is precisely because the people alone are 
 the unquestioned source of all government in 
 this country that they are willing to limit their 
 own power. The most astonishing thing to 
 foreign statesmen, however, is not that the peo- 
 ple should profess to set up such limits, for this 
 has been done in European constitutions, but 
 that they should keep them, and allow the 
 courts to refuse to enforce the acts of their rep- 
 resentatives when they overstep them. In the 
 United States, on the other hand, all this is so 
 much a matter of every-day occurrence that we 
 are in the habit of looking upon a constitution 
 as possessing a sort of intrinsic strength, and 
 maintaining itself proprio vigore. The illusion 
 is beautiful, and justified in our own case by 
 experience, for it is founded on the respect 
 which our citizens feel for the law, and espe- 
 cially for those fundamental principles which 
 are embodied in their constitutions. But in 
 reality a constitution can retain its force only 
 
 1 In the Atlantic Monthly for November, 1884, Mr. Brooks 
 Adams has made a very interesting stud}' of the historical devel- 
 opment of this idea.
 
 42 ESSAYS ON GOVERNMENT. 
 
 so long as the people care for it more than they 
 care to effect any immediate object. Every 
 government is bottomed on force, or, at least, 
 its existence depends upon the consent of those 
 who have power to change it, and in a purely 
 democratic nation the form of government de- 
 pends upon the acquiescence of the majority. 
 When the people make up their minds that 
 they would rather amend the Constitution than 
 fail to effect some desired object, it becomes 
 certain that the Constitution will be amended, 
 and if this happens often the fate of the Con- 
 stitution is sealed. The Constitution of the 
 United States depends upon the fact that the 
 people, with rare exceptions, care more about 
 that Constitution than about any present issue ; 
 and the courts are supported in holding a stat- 
 ute unconstitutional because the people cling to 
 the fundamental principles of law represented 
 by the court, and care more for them than for 
 the statute which the court holds invalid. 
 
 The reader may be inclined to admit all this, 
 and ask how a responsible ministry affects the 
 matter. It affects it vitally, because, as I have 
 attempted to show, a responsible ministry in- 
 volves the fusion of the legislative and execu- 
 tive branches of the government, and the con- 
 centration of all political power in the hands of 
 the direct representatives of the people ; and
 
 CABINET RESPONSIBILITY. 43 
 
 this, accompanied by the increased excitement 
 over national issues and the decay in the politi- 
 cal power and importance of the States, would 
 accustom us to seeing rapid and unlimited ef- 
 fect given to the opinions of the majority. The 
 people would soon learn to chafe at the delays 
 and obstructions of our constitutional methods, 
 and lose the habit of restraining themselves for 
 
 o 
 
 the sake of an ideal ; while the majority would 
 naturally consider every political issue as of 
 paramount importance, and feel that the solu- 
 tion of a pressing question ought not to be en- 
 dangered for the sake of any theoretical prin- 
 ciples, or in order to preserve the forms of a 
 paper constitution. The courts, too, would find 
 themselves in a very different position. Instead 
 of standing between the different branches of 
 government among which political authority is 
 divided, and limiting the power of one for the 
 benefit of another, they would have the full 
 force of government on one side, and nothing 
 to support them on the other. At present the 
 more important questions of constitutional law 
 before the court usually involve the authority 
 of the nation as against the States, or the rights 
 of the States as against the nation, or the 
 power of one department of the government as 
 against another ; and even when the court 
 holds an act unconstitutional on the ground
 
 44 ESSAYS ON GOVERNMENT. 
 
 that it violates one of those provisions which, 
 are established solely for the protection of indi- 
 viduals, it does not set aside the act of the peo- 
 ple, but only the act of a body which but par- 
 tially represents the people, and exercises only 
 a very small part of the popular sovereignty. 
 But under a parliamentary government a court 
 which should venture to declare a statute un- 
 constitutional would be brought face to face 
 with the people themselves. 
 
 In a speech a few years ago, Lord Salisbury 
 is reported to have said that he did not often 
 envy the Americans anything, but that there 
 was one institution which he did envy them, 
 and which he should like to see adopted in 
 England, and that was a court possessing power 
 to declare a statute unconstitutional. No doubt 
 the Tory leader would have been pleased with 
 any institution which would check the legisla- 
 tion of the Liberals, but in this instance he was 
 unfortunate, because he desired an impossibil- 
 ity. Apart from the fact that the central prin- 
 ciple of the English Constitution is the omnipo- 
 tence of Parliament and that the court would 
 find no ground to build its decisions upon, no 
 court in England could possibly have power to 
 hold acts of Parliament invalid, because Parlia- 
 ment is, in effect, a meeting of the people act- 
 ing through their representatives. Complete
 
 CABINET RESPONSIBILITY. 45 
 
 sovereignty resides, therefore, in Parliament, 
 and to oppose the will of that body is to oppose 
 the will of the people. But the American Con- 
 gress has not complete sovereignty, nor has 
 any department of the government, state or 
 federal, nor have all of them acting together. 
 Congress has no authority to declare the will 
 of the people, except within the limits pre- 
 scribed by the Constitution ; for the Constitu- 
 tion itself is the final expression of the popular 
 will, and is binding upon every officer of the 
 government as the supreme law of the land. I 
 am not speaking of the Constitution from a 
 legal standpoint alone. I am speaking of it as 
 it is regarded by the people themselves ; for if 
 this view of the matter were entertained only by 
 the lawyers, no court which assumed power to 
 set aside an act of Congress would be tolerated 
 for a moment. The power of our courts, then, 
 to pass judgment upon the validity of statutes, 
 depends upon the fact that the voice of Con- 
 gress is not the voice of the people. But if a 
 parliamentary form of government were to be 
 introduced into this country, Congress, like the 
 British Parliament, would acquire authority to 
 declare the will of the people, and then no 
 court could long withstand its power. 
 
 I have so far attempted to consider the prob- 
 able consequences of making cabinet officers
 
 46 ESSAYS ON GOVERNMENT. 
 
 responsible to Congress, and to prove that, un- 
 der such a change of methods, our govern- 
 ment would centralize, at the expense of the 
 authority and independence of the States, and 
 that in time the national House of Representa- 
 tives would draw unlimited political power into 
 its own hands. But a recent writer on the 
 subject claims that, in the absence of a respon- 
 sible ministry, these results have already taken 
 place; and this essay would be incomplete with- 
 out a review of the facts on which he bases his 
 opinion. 
 
 In his book on Congressional Government 1 
 Mr. Wilson uses a line of argument very differ- 
 ent from the one commonly in vogue with those 
 who advocate a parliamentary government for 
 this country. He says nothing inconsistent 
 with what I have described as the probable 
 consequences of cabinet responsibility, but, on 
 the contrary, after the manner of Bagehot's es- 
 say on the English Constitution, he attempts to 
 show that the actual form of our government is 
 already radically different from the plan that 
 our forefathers designed, and from the descrip- 
 tions to be found in our political literature. He 
 claims that the supposed checks and balances 
 of the system have failed ; that the President 
 
 1 Congressional Government, by Woodrow Wilson, Boston, 
 Houghton, Mifflin & Co., 1885.
 
 CABINET RESPONSIBILITY. 47 
 
 has ceased to present an obstacle to the power 
 of Congress ; and that the States are no longer 
 able to resist the encroachments of the fed- 
 eral government. Of the power of the Senate, 
 curiously enough, he says little, although he 
 devotes a chapter to that body; but he cer- 
 tainly gives the reader the impression that he 
 considers all real power centred in the commit- 
 tees of the House of Representatives. All this 
 is the more surprising because one of the 
 complaints against Congress which we hear 
 most commonly is that the House of Represent- 
 atives has brought itself into such a condition 
 that it is unable to legislate. Of the judiciary, 
 after explaining that the courts do not and can- 
 not put any effective restraint upon the actions 
 of Congress, Mr. Wilson says: "This balance 
 of judiciary against legislature and executive 
 would seem, therefore, to be another of those 
 ideal balances which are to be found in the 
 books rather than in the rough realities of 
 actual practice ; " and later he adds, " For all 
 practical purposes the national government is 
 supreme over the state governments, and Con- 
 gress predominant over its so-called coordinate 
 branches. Whereas Congress at first over- 
 shadowed neither President nor federal judi- 
 ciary, it now on occasion rules both with easy 
 mastery and with a high hand." On these facts
 
 48 ESSAYS ON GOVERNMENT. 
 
 he founds the argument that, if our theoretical 
 division of powers has miscarried in practice, 
 and if our government has already become cen- 
 tralized, it would be wise to adopt that form 
 of centralized government which will work the 
 best. For this reason he advocates a responsible 
 ministry. The argument is logically sound, 
 and the conclusion follows properly enough, if 
 the premises are admitted ; but these I cannot 
 agree with, and I wish to consider them in the 
 brief space which this essay will allow. 
 
 Our government has undoubtedly centralized 
 a good deal since the beginning of the century ; 
 for the greater facility of communication be- 
 tween the different parts of the Union, the 
 formation of vast corporations comprising sev- 
 eral States in the scope of their operations, 
 and the consequent industrial development of 
 the country, demand from the federal govern- 
 ment the exercise of powers which were far less 
 important ninety years ago. There exists un- 
 questionably a tendency to centralization, which 
 all citizens who care for the Constitution should 
 watch with a jealous eye; but it is a tendency 
 very easy to exaggerate, and not yet developed 
 to such an extent as to impair the political 
 power and independence of the States. The 
 war, and the reconstruction which followed, 
 necessarily produced for a time a great increase
 
 CABINET RESPONSIBILITY. 49 
 
 in the power of the national government. A 
 part of this increase of power lias been ren- 
 dered permanent by the adoption of the recent 
 amendments to the Constitution, while the de- 
 cision of the Supreme Court in the legal-tender 
 cases has assured to Congress the possession of 
 another part ; and for the rest, it is difficult to 
 shake off habits of political thought once ac- 
 quired ; but for many years the federal govern- 
 ment has been playing a constantly decreasing 
 part in the internal affairs of the Southern 
 States, and he must have been blind to the 
 signs of the times who did not perceive long ago 
 the tendency to leave to these States the man- 
 agement of their domestic interests. The Su- 
 preme Court, moreover, in the civil rights cases, 
 struck a heavy blow at the paternal policy of 
 Congress, by denying to it the right to inter- 
 fere directly with the social condition of the 
 citizens of the States, and limiting its author- 
 ity to counteracting and redressing the effects 
 of the action of the state authorities. Mr. 
 Wilson cites as an illustration of the growth in 
 the power of the federal government the enor- 
 mous increase in the number of federal offi- 
 cials ; and so long as offices are made a reward 
 for party service, this standing army of place- 
 men adds dangerously to the political power of 
 the United States ; but when we obtain the
 
 50 ESSAYS ON GOVERNMENT. 
 
 complete reform of the civil service for which 
 every citizen ought to hope, the mere number 
 of federal office-holders will in itself be little or 
 no source of power to the national government. 
 Mr. Wilson also mentions the practice of spend- 
 ing federal money to make internal improve- 
 ments ; and undoubtedly this power of Con- 
 gress, which was hotly debated fifty years ago, 
 has now become an unquestioned part of our 
 constitutional system. Yet, even during the 
 administration of President Jackson, Congress, 
 under the name of deposits, in effect gave to 
 the States the surplus from the national treas- 
 ury ; and it can hardly be said that Congress 
 has of late years done anything under the 
 name of internal improvements which carries 
 the doctrine of implied powers further than 
 this. The statute which provides for the ap- 
 pointment of supervisors of election is cited as 
 the most galling example of the assumption of 
 power by the national government. But it 
 must be remembered that the statute was in- 
 tended to counteract an illegal exercise of 
 power, not by the States, it is true, but by 
 persons subject to the control of the States, 
 and that the statute has not so much the effect 
 of changing the original balance of power be- 
 tween the States and the federal government as 
 of restoring the balance of power ; for the
 
 CABINET RESPONSIBILITY. 51 
 
 framers of the Constitution never contemplated 
 any local power to tamper with the results of 
 elections. The fact appears to be that, al- 
 though the United States has largely increased 
 its authority, the government has not become 
 centralized to such an extent as to upset the 
 balance of power, or even to disturb seriously 
 the equilibrium of the system. Nor has the 
 gain been all on one side. For a long time cer- 
 tain States, of which New York is a conspicu- 
 ous example, chose the presidential electors by 
 districts ; but by adopting the plan of choosing 
 them on a general ticket they have greatly 
 consolidated their political power. It is also 
 worthy of note that the electoral commission 
 in 1876 decided that Congress had no power 
 to go behind the returns of the States in count- 
 ing the votes for President ; whereas in 1839 
 the House of Representatives refused to allow 
 certain members whose election was contested 
 to take part in the organization of the House, 
 although these members held the official cer- 
 tificates of the State governor and council de- 
 claring them elected ; for the House denied 
 that the certificate of the State gave the holder 
 even a primd facie right to a seat. The two 
 cases are not exactly parallel, and the decisions 
 were rendered under the pressure of party 
 excitement ; but ptill they go far to disprove
 
 52 ESSAYS ON GOVERNMENT. 
 
 the statement that the political power of the 
 States has decayed. 
 
 The relative strength of the three depart- 
 ments of the federal government has suffered 
 much greater changes during the century, but 
 it has not always been the same department 
 that has encroached on the others. At times 
 the power of Congress has been in the ascend- 
 ant, at times that of the President ; and this 
 must continue to happen as long as Congresses 
 differ so much in the talent and experience of 
 their members, and as long as a weak and 
 short-sighted President is unable to exercise as 
 much influence as a President of ability and 
 force of character. But Mr. Wilson is in error 
 when he states that " Congress is supreme over 
 its so-called coordinate branches." A sufficient 
 proof of the continuing strength and independ- 
 ence of the President is to be found in the fact 
 that to this day he has no hesitation in using 
 his power of veto ; for the veto has been used 
 more freely of late years than at any period of 
 our national existence. If any further evidence 
 of the power of the President is needed, it is 
 enough to refer to the last great struggle he 
 has had with Congress, the controversy be- 
 tween President Hayes and Congress about 
 riders upon appropriation bills, in which the 
 President was completely victorious. The veto
 
 CABINET RESPONSIBILITY. 53 
 
 can, of course, be overridden by a two-thirds 
 vote of both houses of Congress, and this is 
 done as often as the majority in both houses is 
 large enough to make it possible ; but that is 
 no encroachment on the part of Congress, for 
 it is merely the legitimate exercise of a power 
 which Congress was intended to possess. 
 
 Turning from the legislative to the executive 
 functions of the President, we find that his 
 power has undergone very great variations. 
 When Jackson adopted the practice of giving 
 federal offices as a reward for party service, he 
 forged for the use of Presidents a political in- 
 strument of tremendous power; but the Presi- 
 dent has not been suffered to reap in peace the 
 benefit of this great invention, for a practice 
 has arisen by which the congressional delega- 
 tions from the several States have acquired a 
 great influence in the distribution of the fed- 
 eral patronage. This practice has grown grad- 
 ually and silently ; but during the attempt of 
 Congress to tie the hands of President Johnson 
 it passed the Tenure of Office Act, which struck 
 an open blow not only at the power of the 
 President to use the spoils for his own advan- 
 tage, but also at his power to direct the policy 
 of his own administration. At this time the 
 authority of the President fell lower than it has 
 ever been before or since; and although the Ten-
 
 54 ESSAYS ON GOVERNMENT. 
 
 ure of Office Act still exists in a slightly mod- 
 ified form, it has not the political importance 
 which it possessed in Johnson's day. The doc- 
 trine that the President has no right, under 
 the Constitution, to remove any federal "officer 
 without the consent of the Senate, is not new. 
 It has been a subject of dispute ever since 
 Washington's administration, but in Johnson's 
 time it was used to force him to retain a Cabi- 
 net officer who was bitterly opposed to his policy. 
 It will probably be a long time before the Sen- 
 ate tries to do this again, and it is clear that 
 such an attempt could not now be successful. 
 The subject of the appointing power of the 
 President cannot properly be dismissed without 
 a reference to the principle of senatorial cour- 
 tesy, by which each Senator of the President's 
 political party controlled an important part of 
 the federal patronage in his own State, because 
 the contest between President Garfield and Sen- 
 ator Conkling on this matter is one indication 
 of the recovery by the President of his lost in- 
 fluence. Mr. Wilson's views in regard to the 
 position of the President are explained by a 
 passage in which he says : " No one, I take it 
 for granted, is disposed to disallow the principle 
 that the representatives of the people are the 
 proper ultimate authority in all matters of gov- 
 ernment, and that administration is merely the
 
 CABINET RESPONSIBILITY. 55 
 
 clerical part of government." The first pro- 
 position contained in this sentence is true in a 
 parliamentary government, but the second is 
 not true in any form of government ; and that 
 it cannot be applied to our President, even if 
 we pass over the veto and the power to control 
 foreign relations, is clear when we remember 
 how large a part the executive played in the 
 final settlement of the Southern question. The 
 importance of the executive in the solution of 
 that question was not exceptional. It has long 
 been evident, for example, that Congress can 
 do very little towards the reform of the civil 
 service without a zealous cooperation on the 
 part of the President. A stranger, indeed, 
 who knew nothing of America except what he 
 could hear during a presidential campaign, would 
 readily believe that the President held the only 
 federal office of any real importance. This 
 results in part from the habit of making the 
 candidate for that office the standard-bearer in 
 the fight, but it comes also from the fact that 
 the President not only wields the executive 
 power, but has also a decided control over legis- 
 lation. 1 
 
 It is only necessary to look at the volumes 
 of the Supreme Court reports to be convinced 
 
 1 The power displayed by President Cleveland affords a striking 
 confirmation of the views here expressed.
 
 56 ESSAYS ON GOVERNMENT. 
 
 that the judiciary has not lost its independence 
 or its power. The decisions in the civil rights 
 cases, 1 in the Arlington Heights case, 2 and in 
 the case which decides that the House of Rep- 
 resentatives has no power to examine a witness 
 and to commit him for contempt on a matter 
 not strictly connected with its legislative du- 
 ties, 3 all prove that the judiciary has not be- 
 come subservient to the other departments of 
 the government. In spite of the well-known 
 charge that the bench was packed under Presi- 
 dent Grant, and of the unfortunate connection 
 of the judges with the electoral commission, the 
 Supreme Court appears to stand at the pres- 
 ent day as high in public estimation as ever. 
 I might with truth go further, and say that the 
 concentration of power caused by the civil war 
 has turned in the long run mainly to the profit 
 of the national courts. The recent amend- 
 ments to the Constitution have increased but 
 little the powers of the President and of Con- 
 gress, but they have added enormously to the 
 authority of the federal judiciary. 
 
 Among the recent historical studies published 
 at Johns Hopkins University is a valuable es- 
 say, by Mr. Horace Davis, on the " Relations of 
 
 1 109 U. S. 3. 
 
 2 United States v. Lee, 106 U. S. 196. 
 
 3 Kilbourn v. Thompson, 103 U. S. 168.
 
 CABINET RESPONSIBILITY. 57 
 
 the Departments as adjusted by a Century," 
 and the conclusions of the author are singularly 
 contradictory to those of Mr. Wilson. He 
 shows that in the States the executive has been 
 continually gaining at the expense of the legis- 
 lature, and he considers that the President is 
 recovering the power which he lost during 
 Johnson's administration, while he believes 
 that the judiciary, both state and federal, has 
 steadily increased in power and influence. 
 Slight variations in the relative strength of the 
 different departments of the government do 
 not affect my argument, so long as the bal- 
 ance of the system remains substantially un- 
 impaired. It is enough that the power of the 
 federal government is still limited by the rights 
 of the States ; and that the houses of Congress, 
 the President, and the federal judiciary can 
 each check any serious encroachments on the 
 part of the others. 
 
 I have not attempted in this article to con- 
 sider the question whether a parliamentary 
 system would be better for us than our present 
 Constitution, much less to discuss the relative 
 merits of these two forms of government in the 
 abstract. In fact, the time has passed when 
 every good American believed that all foreign 
 nations were more or less benighted because 
 they did not adopt our Constitution. For my-
 
 58 ESSAYS ON GOVERNMENT. 
 
 self, I believe that our own system is still the 
 best for us ; although, apart from those abuses 
 which have no necessary connection with our 
 form of government, no one can shut his eyes 
 to the defects inherent in the system itself. 
 The American does not accept the maxim that 
 eternal vigilance is the price of liberty. He 
 has altogether too much tendency to believe 
 that liberty and good government can be bought 
 with a written constitution ; and that, once 
 possessed, these blessings form part of that 
 property of which he cannot be deprived, ex- 
 cept by due process of law. In consequence of 
 the division of political power into so many 
 small fragments, the ordinary citizen does not 
 take interest enough in any one of them, and 
 leaves the control of public affairs too exclu- 
 sively in the hands of the professional politicians. 
 Whether these defects are greater than those 
 which we ought to expect under a parliamen- 
 tary government I do not here pretend to in- 
 quire. I have only endeavored to prove that 
 a responsible ministry cannot form a part of 
 our present system ; that one or the other of 
 these forms of government must be accepted in 
 its completeness, with all its merits and with 
 all its faults. 1 
 
 1 In dealing with this subject it would be very interesting, if 
 time and space permitted, to carry the investigation much farther,
 
 CABINET RESPONSIBILITY. 59 
 
 and to examine in detail each of the different parliamentary govern- 
 ments of the world. Such an examination would be especially 
 important in the case of several of the British colonies, in order 
 to explain the apparent vitality of the two houses in Australia, 
 and the existence of a federal system in Canada, in the face of a 
 responsible ministry. Any one who is thoroughly familiar with 
 the history and the political condition of the colonies will easily 
 perceive the causes of these phenomena, and will recognize that 
 they are not in reality inconsistent with the views expressed in 
 this essay. 
 
 The government of Canada is not federal in at all the same 
 sense as that of the United States, and it is highly probable that, 
 if her population were as homogeneous and her interests as har- 
 monious as ours, she would have entered on a course of rapid 
 centralization. At all events it is clear that the lack of sympathy 
 between her different races, and the fact that some of her provinces 
 are more naturally drawn into commercial relations with the neigh- 
 boring republic than with one another, are quite enough to account 
 for any amount of independence on the part of her local legisla- 
 tures. In regard to Australia, on the other hand, it must be clear 
 to every observer that the connection with the mother country has 
 exercised a great though silent influence upon all the conflicts be- 
 tween the two houses, and it is easy to believe that if these colonies 
 had been entirely independent the popular chamber would in each 
 case have made short work with its less democratic rival.
 
 II. 
 
 DEMOCRACY AND THE CONSTITUTION. 
 
 As private Liberty cannot be deem'd secure under a Government, 
 wherein Law, the proper and sole Security of it, is dependent on 
 Will, so publick Liberty must be in Danger, whenever a free Con- 
 stitution, the proper and sole Security of it, is dependent on Will ; 
 and n free Constitution, like ours, is dependent ou Will, whenever 
 the Will of one Kstate can direct (he conduct of all Three, 
 
 BOI.IXGBUOKE, Dissertation on Parties, Letter XVIII. 
 
 THE founders of the American government 
 derived their political ideas largely from the 
 writings of Frenchmen, but they owed their 
 political experience and their legal views to 
 English sources, and it is partly for this reason 
 that the public law of the United States is 
 based upon two independent if not incon- 
 sistent principles. They are, democracy, and 
 the sacredness of private rights. Of these, 
 the former has until recently occupied almost 
 exclusively the attention of foreign observers, 
 for it is aggressive and demonstrative, making 
 itself known by exciting elections and noisy 
 debates in public assemblies ; while the latter 
 works silently by means of the courts of law,
 
 DEMOCRACY AND THE CONSTITUTION. 61 
 
 although none the less powerful because less 
 noticed. A thorough grasp of the relations 
 which these two principles bear to each other, 
 and of the manner in which they are combined 
 by our various constitutions, is necessary in 
 order that the real working of American insti- 
 tutions may be understood. 
 
 Ever since the Renaissance stirred men to 
 speculate upon government, two theories con- 
 cerning the nature of political power have made 
 themselves prominent: the first dwelling upon 
 the absolute authority of the sovereign, and 
 declaring that no rights can exist in opposition 
 to his will ; the other insisting upon certain 
 natural rights of individuals which the sovereign 
 can never legally infringe. To these theories 
 there correspond two opposite views of the 
 proper functions of the state. According to 
 one of them, commonly called the paternal 
 theory of government, it is the duty of the 
 sovereign to provide directly for the well-being 
 of his subjects ; while according to the other 
 view the ruler ought to confine himself mainly 
 to the restraint of violence, the administration 
 of justice, and defense against foreign enemies, 
 leaving to the citizen the task of seeking his 
 own prosperity and happiness in his own way. 
 But it is very important to observe that 
 neither the paternal system, nor the system of
 
 62 ESSAYS ON GOVERNMENT. 
 
 individual liberty, lias any necessary connec- 
 tion with a particular form of government, and 
 it is to the failure to recognize this fact that 
 a great deal of confusion in political thought 
 is to be attributed. So universal has been 
 the conviction that an increase in popular 
 power implied an increase in personal freedom, 
 that the same term is still used to designate 
 both, the word " liberty " being applied indif- 
 ferently to the possession of political power, or 
 political liberty, and to personal freedom, or 
 civil liberty. The hold which this error has 
 obtained even over men of independent thought 
 is strikingly illustrated in Buckle's " History of 
 Civilization ; " for, recent as that work is, the 
 author assumes throughout that the progress 
 of democracy is inseparably connected with 
 that diminution of restraint upon personal free- 
 dom in which he believes civilization to consist. 
 The cause of such a confusion of ideas is to 
 be found chiefly in a reaction against the pa- 
 ternal despotisms that long ruled continental 
 Europe, and iu the fact that the earliest ef- 
 forts of democracy were devoted to the destruc- 
 tion of privilege, which was at that time the 
 great barrier to individual freedom. But there 
 is another reason for the association of demo- 
 cracy with personal liberty which is extremely 
 suggestive. Freedom from restraint and op-
 
 DEMOCRACY AND THE CONSTITUTION. 63 
 
 pression, the right of every man to do what he 
 pleases, is always claimed by those who are 
 out of power, and who feel that they are in the 
 hand of their enemies. Toleration is always 
 an article of faith with a persecuted sect, but 
 unfortunately it is only too rarely that this 
 tenet is remembered when the sect succeeds 
 in getting control of the state. Now democracy, 
 like all other principles in the world, was an 
 outlaw in its infancy, and many of its most ar- 
 dent advocates, looking upon themselves as op- 
 pressed by the rulers of the Old World, were 
 naturally of opinion that the activity of govern- 
 ment ought to be reduced to the smallest pos- 
 sible limit. But the fact that this doctrine 
 has no necessary connection with democracy is 
 clearly seen in the history of France, in which 
 the habits of centralization and state tutelage 
 formed under the monarchy were rather in- 
 creased than diminished by the revolution, and 
 have survived every subsequent change in the 
 form of the government. 
 
 It was formerly believed that all violations 
 of private rights, and all interference with per- 
 sonal liberty, proceeded from rapacity or lust 
 for power on the part of the monarch or ruling 
 aristocracy, but experience has shown that this 
 is a mistake. Even if selfish motives could be 
 quite eliminated, and if the persons who govern,
 
 64 ESSAYS ON GOVERNMENT. 
 
 whether king, aristocracy, or popular party, 
 were free from any temptation to use their 
 power for private advantage, the danger of ex- 
 cessive meddling with individual freedom would 
 not be put aside ; for it is a matter of every- 
 day experience that no one is more intolerant, 
 or more eager to force the whole world to walk 
 in his own path, than the genuine, whole-souled 
 philanthropist. It must never be forgotten 
 that liberty means liberty to do wrong as 
 well as to do right ; and any ruler must be 
 well-nigh superhuman who can look on calmly 
 while a part of his subjects pursue a course of 
 conduct which he considers injurious to the 
 community, and, possessing the power to pre- 
 vent such conduct, refrains from making use 
 of it. A ruler of this kind would be regarded 
 by most people as grossly derelict in his duty ; 
 and if in a democracy the majority of the 
 voters considered the acts in question harmful 
 or wicked, the government would speedily be 
 replaced by another which would put a stop to 
 them. Every government, in such cases, is cer- 
 tain to make use sooner or later of the power 
 at its command, because the number of people 
 who are really convinced that it is better to 
 permit wrong than to interfere with personal 
 liberty is extremely small. 
 
 I have said that this would be true even if
 
 DEMOCRACY AND THE CONSTITUTION. 65 
 
 selfish motives could be eliminated, but the 
 supposition is impossible. Rousseau, indeed, 
 tried to prove that the interest of the individual 
 could never conflict with that of the majority, 
 and he went so far as to declare that no com- 
 munity in which political parties exist is ca- 
 pable of a free expression of public opinion. 
 The same ideas prevailed even among men who 
 did not indulge in these sophisms, for it was 
 the general habit in the last century to speak 
 of the people as a whole, without inquiring 
 whether the aims of all parts of the com- 
 munity were of necessity identical ; and it is 
 probable that nothing which has occurred 
 would have surprised the democrats of that 
 time more than the immense development 
 of party in free countries. But to-day it is 
 perfectly clear that the interests of all parts 
 of society do not invariably coincide ; or rather 
 it is clear that all classes of citizens do not 
 believe that their interests are alike, and this 
 for our present purpose is the same thing, be- 
 cause a popular majority, which is convinced 
 that its welfare demands a sacrifice of the 
 rights of a certain class in society, is under a 
 strong temptation to trample upon them, just 
 as a monarch or an aristocracy would be. No 
 possessor of power, whether his impulses are 
 philanthropic or mercenary, is ever gratified
 
 66 ESSAYS ON GOVERNMENT. 
 
 by restraints imposed upon his use of it, and 
 there is a great truth condensed into the short 
 German couplet : 
 
 " Und der Konig absolut, 
 Wenn er unsern Willen thut." 
 
 It is clear that where absolute power is vested 
 in any man or body of men, the rights of indi- 
 viduals depend upon the will of that man or 
 body; and this is no more true in the case of a 
 king than in that of a legislative assembly or a 
 sovereign people. Now we have seen that 
 these are all constantly tempted to abuse their 
 power both from selfish and from noble mo- 
 tives. If, indeed, we compare the position of 
 a monarch with that of a popular majority, 
 we shall find that the former has the greater 
 reason to curb the exercise of his will, and that 
 his tyranny is therefore likely to be the less 
 absolute of the two. He is always very much 
 restrained by public opinion as well as by fear 
 of actual resistance, whereas a popular majority, 
 or a representative assembly possessed of ab- 
 solute power, being itself the organ of public 
 opinion, has little except the votes of its own 
 members to reckon with; and the fear of an 
 insurrection on the part of the oppressed mi- 
 nority, such as De Tocqueville expected, does 
 not appear to have exerted a restraining influ- 
 ence, to an appreciable extent, in modern times.
 
 DEMOCRACY AND THE CONSTITUTION. 67 
 
 Wealth, when threatened with hostile legisla- 
 tion, has shown a tendency to resort to cor- 
 ruption, but the fear of this never cools the 
 zeal of the law-maker, and corruption is prob- 
 ably the worst evil that can attack the body 
 politic. A multitude, moreover, is less steadied 
 by a sense of responsibility than a single au- 
 tocrat. Nor is the influence of its advisers 
 of a better character, for it has become al- 
 most proverbial that the demagogue is made 
 of -the same stuff as the courtier. His flattery, 
 and his willingness to surrender his own con- 
 victions to the wishes of his master, are the 
 same ; and although the open rivalry of oppos- 
 ing parties in modern popular government gives 
 an opportunity for criticism upon the manage- 
 ment of affairs which does not exist under an 
 absolute monarchy, it furnishes also a means of 
 openly tempting the sovereign people to change 
 its ministers by offers of fresh benefits to be de- 
 rived from the spoliation of individuals. There 
 are, no doubt, certain very striking differences 
 between the despotism of a popular majority 
 and that of former monarchies. Modern demo- 
 cracies do not inflict punishments for heresy in 
 political or religious matters, but this is chiefly 
 because orthodoxy is not considered of the same 
 importance to the public as formerly, and be- 
 cause we have learned that persecution is rarely
 
 68 ESSAYS ON GOVERNMENT. 
 
 an effective method of producing uniformity of 
 creed. There is also a great diminution in the 
 use of violence, but this is due not so much to 
 any greater respect for liberty in democracies as 
 to the growing abhorrence of bloodshed, and to 
 the fact that the opposition do not and cannot 
 resort to revolutionary methods to the same ex- 
 tent as under other forms of government. It 
 is due still more, perhaps, to an appreciation 
 of the immense superiority of legislation as a 
 weapon for carrying into effect the will of the 
 party in power. 
 
 The paternal theory of government lias of 
 late years been gaining ground rapidly in all 
 countries, and especially in England, which 
 has always been regarded as the very home of 
 personal freedom. The habit now so common 
 in England and her dependencies, of meas- 
 uring- the efficiency of a government by the 
 quantity of statutes it has produced, is a signifi- 
 cant symptom of this tendency ; for it must be 
 remembered that a large proportion of these 
 acts are neither more nor less than a regulation 
 by the state of dealings between private per- 
 sons, and that in many cases they involve an 
 actual violation of vested rights. There is a 
 saying often quoted, to the effect that the chief 
 task of law-makers to-day consists in undoing 
 the work of their predecessors ; but if so, one
 
 DEMOCRACY AND THE CONSTITUTION. 69 
 
 might expect that a sympathy with their suc- 
 cessors would induce them to pause and reflect 
 upon the vast legislative labors which their ac- 
 tivity is piling up for posterity. 
 
 This subject has of late years attracted the 
 attention of several writers, of whom Mr. Her- 
 bert Spencer is by far the best known. In 
 his collection of essays entitled " The Man 
 versus the State," Mr. Spencer reviews the 
 recent English legislation and shows very for- 
 cibly its paternal character, but unfortunately 
 his discussion of the cause of such a state of 
 things is by no means equally satisfactory. 
 The fact is that he is blinded by a theory. He 
 attempts to apply the principle of evolution 
 rigidly to the history of mankind, and to prove 
 that civilization proceeds by stages as invaria- 
 ble and as clearly marked as those revealed in 
 the physical life of plants and animals. With 
 this view he divides the progress of society 
 into an earlier or militant stage, in which, for 
 the sake of supremacy in war, liberty of action 
 is denied to the individual, even the most ordi- 
 nary affairs of life being regulated by a disci- 
 pline like that of an army ; and into a later or 
 industrial stage, in which the state confines 
 itself to the preservation of order and the ad- 
 ministration of justice, leaving all other mat- 
 ters to the discretion of the citizen. In accord-
 
 70 ESSAYS ON GOVERNMENT. 
 
 ance with this theory he explains the paternal 
 tendency of British legislation by saying that 
 England is unfortunately relapsing into the 
 militant stage of civilization, an idea which 
 cannot fail to amaze any one familiar with the 
 recent foreign policy of that country. But 
 strange as the suggestion that the British lion 
 is recovering a dangerous amount of pugnacity 
 may appear, it is no less astonishing to hear 
 a man of science complaining of that animal 
 for trying to change the unalterable course of 
 nature. If it is true that the industrial follows 
 the militant stage as certainly as the evening 
 follows the morning, and if to reverse this 
 order is as impossible as to cause the shadow 
 on the sun-dial to return ten degrees backward, 
 then any indignation or alarm at the course 
 pursued by English legislators must be quite 
 out of place. As well might the German pro- 
 fessor, who proved to his own satisfaction that 
 the monkey is physically incapable of throwing 
 a stone, get angry with the brute for showing 
 signs of an intention to try it. 
 
 However alarming the drift towards pater- 
 nal government may be, it ought not to sur- 
 prise any one who has studied the course of 
 thought during the last hundred years. At 
 the time of the French Revolution, and to some 
 extent on the occasion of every great demo-
 
 DEMOCRACY AND THE CONSTITUTION. 71 
 
 cratic victory won in later years, a belief has 
 prevailed that, by means of artificial social ar- 
 rangements, mankind had been robbed of inesti- 
 mable blessings which it would otherwise pos- 
 sess, and that to secure the complete happiness 
 and prosperity of the people nothing was neces- 
 sary but to break the chains of despotism and 
 set the world free; but after the old order of 
 things had been upset, and history had begun 
 afresh, it was found that mankind had not at- 
 tained the state of perfect happiness which had 
 been foretold, 1 and which it never will reach so 
 long as sin, folly, and weakness are such large 
 elements in its composition. Finding that the 
 mere destruction of existing institutions and 
 the advent of democracy had not produced all 
 that was expected of them, and still believing 
 the millennium within their grasp, men natu- 
 rally began to make use of the power of legis- 
 lation which lay at their disposal, in hopes of 
 improving the condition of society. The first 
 step in this direction was philanthropic, and 
 consisted of an unselfish endeavor to alleviate 
 suffering and prevent wrong. To this class of 
 efforts belong the liquor laws, and all other at- 
 tempts to make men good against their will ; 
 but far-reaching and grave as legislation of this 
 
 1 This idea is forcibly presented in Mr. Stimson's article on 
 "The Ethics of Democracy," Scribner's Magazine, June, 1887.
 
 72 ESSAYS ON GOVERNMENT. 
 
 sort may be, it is by no means the most radical 
 that is to be expected. The next step is a great 
 deal more momentous. The majority of the 
 people are little favored with the blessings that 
 flow from wealth, and perceiving that wealth 
 depends upon law, and that the power of mak- 
 ing laws is within their own control, they are 
 strongly tempted to make use of that power in 
 order to acquire for themselves a part of the 
 benefits of property. This is the most serious 
 form that paternal government can assume, 
 and it is unfortunately in this form that it is 
 spreading rapidly to-day. To any one, there- 
 fore, who reflects upon the socialistic laws 
 already enacted, and who sees with dread the 
 vast quantity of such legislation which is de- 
 manded, it is vitally important to examine the 
 various political institutions in democratic coun- 
 tries, and to inquire how far they are adapted 
 to promote or to check this tendency. 
 
 It is very easy to overestimate the effect of 
 political institutions upon the development and 
 prosperity of a community, for unless they are 
 closely fitted to the condition of the people they 
 are certain to be broken or twisted quite out of 
 shape by the forces which they are designed to 
 control. An instance of the tendency to fall 
 into this mistake is to be found in the remark 
 sometimes made by foreign observers that the
 
 DEMOCRACY AND THE CONSTITUTION. 73 
 
 one question which the Americans failed to 
 settle clearly in the Constitution the question, 
 that is, of the right of a State to secede from 
 the Union became the cause of a terrible civil 
 war. Now any one who is thoroughly familiar 
 with the history of the United States will rec- 
 ognize the fact that no provision on the subject 
 of secession, however clear, could have averted 
 the struggle between the North and the South. 
 It might have changed the legal and political 
 aspect of the quarrel. It might have post- 
 poned the war, or even altered the proportions 
 of the opposing forces; but it could not have 
 caused two different social systems to live side 
 by side in peace. It is only by adapting an 
 institution to the temperament and habits of 
 thought of the community that it can be made 
 to work successfully; and the failure to under- 
 stand this principle, combined with the diffi- 
 culty of applying it in practice, is no doubt the 
 chief cause both of those catastrophes which 
 have brought artificial constitutions into disre- 
 pute, and of the comparative stability of all 
 forms of government which have resulted from 
 a slow process of development. The Supreme 
 Court of the United States, for example, could 
 never have acquired its power of deciding a stat- 
 ute unconstitutional in any other country, at 
 least in any other than an Anglo-Saxon country,
 
 74 ESSAYS ON GOVERNMENT. 
 
 and this would be true even if the Constitu- 
 tion had been copied word for word. A stran- 
 ger who knew nothing of the actual working 
 of the American government might very well 
 study that instrument from beginning to end 
 without ever suspecting that the court pos- 
 sessed any such power at all. Institutions well 
 adapted to the temper of the nation have, how- 
 ever, an important effect in directing and mod- 
 erating political forces, and they exert a still 
 greater influence by moulding the opinions 
 and habits of thought of the people. 
 
 Taking, then, democracy as our base of oper- 
 ations, and assuming that the will of the ma- 
 jority when legally expressed is in all matters 
 to be considered law, let us inquire what in- 
 stitutions are appropriate to a paternal gov- 
 ernment, and what contrivances, on the other 
 hand, can be devised for the protection of in- 
 dividual freedom and independence. Let us 
 suppose, in the first place, that paternal govern- 
 ment is the object to be sought, and that it is 
 the mission of the state to provide for the wel- 
 fare and to promote directly the progress of 
 society. In this case it is evident that there 
 ought to exist no institution which will enable 
 private persons to bar that progress, or to pre- 
 vent the state from carrying out its benefi- 
 cent designs. It is clear that the best form
 
 DEMOCRACY AND THE CONSTITUTION. 75 
 
 of government is one which will organize the 
 majority into as compact a body as possible, 
 and concentrate the whole force of the commu- 
 nity against the individual. For a large coun- 
 try these requisites are, perhaps, to be found 
 most completely realized in the parliamentary 
 system of government as it is developing in 
 England. I say developing, because, although 
 parliamentary government in Great Britain is 
 nearly two centuries old, it is only very re- 
 cently that it has begun to adapt itself to the 
 conditions of a widely extended franchise, and 
 to form part of a democratic system. English 
 institutions, although historically intricate, are 
 to-day in their main features extremely sim- 
 ple. A single assembly wields the whole force 
 of the nation. It is led, and in fact ruled, 
 by a committee responsible to the majority 
 of the members, who in their turn represent 
 as nearly as possible the majority of the citi- 
 zens. These are the chief outlines of the 
 plan. Now if the object of government is to 
 formulate and give effect to the wishes of the 
 majority, among a people too numerous and 
 too widely scattered to assemble and transact 
 public business in a mass meeting, no better 
 method of accomplishing that result could 
 probably be devised. In such a case a more 
 complicated system of legislative bodies would
 
 76 ESSAYS ON GOVERNMENT. 
 
 be out of place, and the famous aphorism of 
 the Abbe Sieves applies to it perfectly : " If a 
 second chamber dissents from the first " (and 
 therefore from the popular majority), " it is 
 mischievous ; if it agrees, it is superfluous." 
 
 A representative is always less violent than 
 a pure democracy, because the legislators have 
 a keener sense of personal responsibility ; but 
 the parliamentary system is, in this respect, 
 the nearest approach to a pure democracy that 
 representative government is capable of fur- 
 nishing, because a member of the dominant 
 party in the popular chamber, by following 
 blindly the lead of the ministry, can divest 
 himself almost completely of responsibility for 
 his own judgment, and feel that he conforms 
 to the opinion of his constituents. The Swiss 
 device of the referendum, although commonly 
 supposed to savor of pure democracy far more 
 than the English form of government, is in re- 
 ality more conservative. It is simply a means 
 by which the people can put a veto upon the 
 acts of their representatives, and to the dismay 
 of the radicals it has been used to defeat a num- 
 ber of their favorite measures. The reason for 
 this has been suggested by Sir Henry Maine in 
 his book on " Popular Government '' (p. 97). 
 " It is possible," he says, " by agitation or ex- 
 hortation, to produce in the mind of the aver-
 
 DEMOCRACY AND THE CONSTITUTION. 77 
 
 age citizen a vague impression that be desires 
 a particular change. But when the agitation 
 has settled down on the dregs, when the ex- 
 citement has died away, when the subject has 
 been threshed out, when the law is before him 
 in all its detail, he is sure to find in it much 
 that is likely to disturb his habits, his ideas, his 
 prejudices, or his interests, and so, in the long 
 run, he votes ' No ' to every proposal." Whether 
 we should be inclined to go to quite this length 
 or not, it is clear that a man will often vote 
 against a law although, in the heat of party 
 strife, he may have helped to elect a candidate 
 who announced a measure of the same nature 
 as part of his political programme. It is one 
 thing for a laborer to vote for a party which 
 declares that it will protect him from the grind- 
 ing oppression of the capitalist, but it is a very 
 different thing for the same man to vote for a 
 law which, under the name of protection, cur- 
 tails his right to earn money as best he can. 
 Now under a parliamentary government the 
 vote for the candidate is the last word the 
 citizen has to say upon the matter, and the 
 member takes his seat believing that he has 
 been given a mandate to carry his programme 
 into effect. In England, indeed, as has been 
 often pointed out, the parties are beginning to 
 go farther than the popular mandate can be
 
 78 ESSAYS ON GOVERNMENT. 
 
 supposed to require, and there are signs of a 
 disposition to bid for the vote of various classes 
 in the community by offers of legislation which 
 will confer benefits on the many at the expense 
 of the few. 
 
 Even the so-called initiative, an institution 
 established in many of the Swiss cantons which 
 enables a certain number of citizens to propose 
 a law and require a popular vote upon it, is in 
 some ways more conservative than the parlia- 
 mentary system, because it does not present the 
 same opportunities for organizing and consoli- 
 dating a popular majority, and political pajties 
 exert in fact far less influence in Switzerland 
 than in most other democratic countries. Some 
 laws, it is true, have been enacted in the Swiss 
 cantons which are far too radical for the Eng- 
 lish Parliament; but before this can be used 
 as an argument to prove the radical nature of 
 Swiss institutions, it would be necessary to 
 make a careful comparison of the two peo- 
 ples, of their social conditions, their habits of 
 thought, and their respect for existing rights. 
 It is to be remembered, moreover, that Eng- 
 land is really only just beginning to be a dem- 
 ocratic country ; and it is highly important to 
 observe that a law like that imposing a heavy 
 progressive income tax is a very different thing 
 in a comparatively poor country like Switzer-
 
 DEMOCRACY AND THE CONSTITUTION. 79 
 
 land, from what it would be in a great and rich 
 industrial nation like the English. 
 
 In a democratic country ruled by one all- 
 powerful assembly, the only restraint upon the 
 desires of the majority consists in a conserva- 
 tive tone of thought, an attachment to existing 
 forms of law, and a reverence for them as 
 something peculiarly sacred. A belief in the 
 inherent perfection of the Code Napoleon is 
 said to have had a marked effect in restraining 
 law making in France, and in directing activity 
 into political instead of legislative channels; 
 and there is no doubt that such a sentiment 
 can for a time exert a considerable influence, 
 but it fades quickly away if brought into con- 
 stant collision with the will of the majority. 
 In France such collisions are much less fre- 
 quent than they would be in England or Amer- 
 ica, because the right of the majority is in 
 reality much less recognized. De Tocqueville 
 has remarked l that the French philosophei'S be- 
 fore the Revolution, while extolling the rights 
 of the majority and the infallibility of the 
 human reason, in reality despised the major- 
 ity, and admired only their own reason. The 
 ardent French republican at the present day 
 breathes the same spirit, and believes not only 
 that the republic is the best form of govern- 
 
 1 Ancien Regime el la Revolution, note to book iii. chap. i.
 
 80 ESSAYS ON GOVERNMENT. 
 
 ment, and that the people are entitled to have it 
 if they want it, but that they ought to have 
 it whether they want it or not. The greatest 
 danger to the French Republic consists in the 
 blindness of its votaries, who cannot see that 
 a large and influential part of the nation care 
 more for the security of their civil and religious 
 rights than for any form of government. 
 
 The English have shown in the past more 
 respect for law and custom than any other peo- 
 ple in modern times, but now this feeling is 
 very sensibly diminishing, as any one can see 
 who will compare the parliamentary debates of 
 the last century with those which take place 
 at the present day. The former turn, as Sir 
 Henry Maine has pointed out, to a surprising 
 extent, on questions of law. Parliament shut 
 its ears when Burke argued that the taxation 
 of the American colonies was inexpedient, and 
 only wanted to hear whether it was legal or not. 
 Whereas in all the recent debates it is not only 
 universally assumed that Parliament has power 
 as a matter of law to do whatever it pleases, but 
 the whole issue is treated as one of expediency, 
 and existing rights weigh little in the balance. 
 The progress of thought has upset the old no- 
 tion of natural rights, and has destroyed a great 
 part of the reverence felt for legal traditions, 
 and for that " glorious constitution " which used
 
 DEMOCRACY AND THE CONSTITUTION. 81 
 
 to be the boast of Englishmen of all parties. 
 It is also to be noticed, that the British con- 
 stitution itself, with all that vast collection of 
 charters, statutes, customs, and traditions which 
 the word implies, never comprised anything 
 designed to protect the individual against op- 
 pression by the majority. Take the authority 
 of the House of Commons in matters of taxa- 
 tion. The fact that the king could levy no 
 taxes without the consent of his faithful com- 
 mons prevented him, no doubt, from becom- 
 ing an absolute monarch like his brother of 
 France; and the privilege of the lower house 
 in originating bills of supply has had a great 
 deal to do with the depression of the influence 
 of the peers, but neither of these things was 
 ever adapted to check the majority of the 
 people, or even to prevent them from plunder- 
 ing their rich neighbors under the guise of 
 taxation, if they felt inclined to do so. The 
 provisions in the Bill of Rights, also, and the 
 famous clause in JMagna Charta, were not in- 
 tended to restrain in any way the legislative 
 power of Parliament. These great bulwarks of 
 English liberty, as they were quite properly 
 called, were very effective in shielding the 
 people against attacks on the part of the king, 
 but they have served their purpose, and now 
 that the royal authority has faded to a shadow,
 
 82 ESSAYS ON GOVERNMENT. 
 
 and the power of the House of Lords is not 
 much more substantial, their usefulness has 
 passed, and in the presence of democracy they 
 have become as obsolete as armor in the face 
 of cannon. These institutions have stamped 
 one very important mark upon English democ- 
 racy. They have secured to a great extent the 
 absence of administrative government. They 
 have made England a country of laws, and, by 
 preventing the growth of large discretionary 
 authority among officials, they have made it 
 impossible for a dictator to usurp power in the 
 name of the people. But they have put no 
 check upon legislation. To so great an extent 
 is this true, that private property in England 
 is, on the whole, less secure from attack on the 
 part of the government to-day than it was at 
 the time of the Stuarts. 
 
 An opinion was delivered some years ago by 
 an American judge in one of the Western 
 States, in which this startling sentence occurs : 
 " Even in Great Britain, esteemed to have the 
 most liberal constitution on the Eastern conti- 
 nent, Magna Charta is not of sufficient potency 
 to restrain the action of Parliament, as their 
 judiciary does not, as a settled rule, bring laws 
 to the test of its provisions. Laws are there 
 overthrown only occasionally by judicial con- 
 struction. Such a thing, indeed, as deciding a
 
 DEMOCRACY AND THE CONSTITUTION. 88 
 
 law or royal decree unconstitutional, in an ab- 
 solute government is unknown. Hence the 
 oppression of the people." 1 But ridiculous as 
 this scream of the American eagle certainly is, 
 it may not be very long before we can say with 
 truth : Hence the oppression of the minority ! 
 
 The Americans are the only people who have 
 set themselves to work to solve the problem of 
 restraining the power of the majority, and 
 this they have done deliberately, although the 
 circumstances of the country and the historical 
 traditions of the race have helped them very 
 much in their task. The Constitution of the 
 United States contained at first no bill of 
 rights, and to many people this appeared a 
 serious defect. They had been accustomed to 
 look on Magna Charta, the Petition of Right, 
 and the Bill of Rights as the groundwork of 
 English liberty, and they had a feeling, some- 
 what vague perhaps, that without ,a similar 
 declaration they would be exposed to tyranny. 
 Hamilton met their objections in " The Feder- 
 alist " (No. 84) by saying : " Bills of rights are, 
 in their origin, stipulations between kings and 
 their subjects, abridgments of prerogative in 
 favor of privilege, reservations of rights not 
 surrendered to the prince. ... It is evident, 
 therefore, that according to their primitive sig- 
 
 l Perkins, J-, in Beebe t>. The Slate, G Ind. 501.
 
 84 ESSAYS ON GOVERNMENT. 
 
 nification, they have no application to constitu- 
 tions professedly founded upon the power of 
 the people, and executed by their immediate 
 representatives and servants. Here, in strict- 
 ness, the people surrender nothing ; and as 
 they retain everything, they have no need of 
 particular reservations." He pointed out, in 
 short, the unquestionable fact that without a 
 Bill of Rights the Americans were in the same 
 position as the English were with ono. But bis 
 opponents answered that wherever power was 
 placed it was liable to be abused, and that just 
 as Magna Charta and the Bill of Rights had 
 been a shield to the English against their king, 
 so they might be a shield to the Americans 
 against the government. In those days, it was 
 not executive tyranny that men chiefly dreaded, 
 but oppression by the legislature. The attempt 
 of the legislatures in several states to hinder 
 the collection of private debts, or to cancel them 
 in part by the issue of paper money, was a 
 symptom of a tendency which alarmed the more 
 serious members of the community, and Jef- 
 ferson expressed a prevalent opinion when he 
 wrote: "The executive, in our governments, 
 is not the sole, it is scarcely the principal, ob- 
 ject of my jealousy. The tyranny of the legis- 
 latures is the most formidable dread at present, 
 and will be for many years."
 
 DEMOCRACY AND THE CONSTITUTION. 85 
 
 Several of the provisions in the English Bill 
 of Rights those concerning cruel and un- 
 usual punishments, and the right of all citi- 
 zens to bear arms, to petition the government, 
 and to be tried by jury could easily be ap- 
 plied to Congress, and amounted to a prohibi- 
 tion of certain definite classes of legislation ; 
 but the provision borrowed from the famous 
 clause of Magna Charta and put in the form, 
 " No person shall be deprived of life, liberty, 
 or property, without due process of law," lost 
 its whole meaning when used with reference 
 to a legislative body. The object of the char- 
 ter signed by King John was simple enough. 
 The barons, incensed by the king's lawless- 
 ness, arose in arms, and catching him defense- 
 less at Runnymede, extorted from him a prom- 
 ise to keep the law in future. This was the 
 practical side of the Great Charter. . Philo- 
 sophically it implied that the king was to ex- 
 ercise no legislative power, and in fact an 
 agreement that no man should be disseized, 
 outlawed, or destroyed, except according to 
 the judgment of his peers or the law of the 
 land, would afford no protection to the vassals 
 of the crown if John had power to change 
 that law to suit his pleasure. By " the law of 
 the land " the barons meant the existing law, 
 which could not be changed without their own
 
 86 ESSAYS ON GOVERNMENT. 
 
 consent. Entirely misapprehending the force 
 of this provision, or rather having no distinct 
 idea of its effect, and regarding it very much 
 as the Italian does .the talisman which keeps 
 off the evil eye, the American statesmen of 
 a hundred years ago put it into the Bill of 
 Rights, and left it as a puzzle for posterity to 
 solve. It is clear that "due process of law'' 
 was not intended to include every process which 
 the legislature chose to make law, because, if 
 so, the provision would be nugatory ; and it is 
 equally clear that the phrase was not meant, 
 like its prototype in the Great Charter, to refer 
 only to existing law, or to law established by 
 some body other than the one whose power the 
 provision was designed to restrain, because in 
 that case the legislature would be forbidden to 
 make any change in the law to the detriment 
 of individuals, and as there are few changes in 
 the law which do not affect private rights more 
 or less, it would virtually be deprived of legis- 
 lative power altogether. Placed between the 
 horns of this dilemma, th' courts have been 
 obliged to find a construction for the clause 
 which leaves to the legislature a reasonable 
 amount of discretion, and yet prevents vexa- 
 tions interference with vested rights, and thus, 
 quite without precedent in the history of the 
 world, a body of constitutional law has been
 
 DEMOCRACY AND THE CONSTITUTION. 87 
 
 formed which is not yet completely crystal- 
 lized, but is being daily shaped by the deci- 
 sions of the courts. In this way the blunder 
 made in searching for restraints upon legisla- 
 tive power has turned out a most fortunate 
 one ; for the provision in question, together with 
 those which forbid the taking of private prop- 
 erty for public use without just compensation, 
 and the enactment of laws impairing the obliga- 
 tion of contracts, lies at the foundation of all 
 constitutional protection of private rights in the 
 United States. 
 
 This example will suffice to prove that the 
 founders of the American government, in an- 
 nexing to their various constitutions Bills of 
 Rights, had not always a definite idea of the 
 effect of the provisions they adopted, but the 
 object they proposed to themselves was per- 
 fectly clear. They intended to restrain the 
 impulse of popular majorities, and more espe- 
 cially to prevent the legislature from becoming 
 despotic and tyrannous. In order to accomplish 
 this result they did not rely on Bills of Rights 
 alone, but made use of many other devices, 
 which deserve consideration. For the sake, 
 of treating the subject more broadly, it may 
 be worth while to inquire what are the es- 
 sential features of a system which, with equal- 
 ity and democrac} r , shall attempt to maintain
 
 88 ESSAYS ON GOVERNMENT. 
 
 individual rights, and see, as we proceed, how 
 far these features are to be found in the Ameri- 
 can government. It is not, of course, to be 
 supposed that all those things in the political 
 system of the United States which helped to 
 put a curb on the majority were deliberately 
 planned by the framers of the Constitution for 
 that purpose. Many expedients were forced 
 upon them by the political condition of the 
 country, and the working of the others was 
 only partially foreseen ; but it is easy, on the 
 other hand, to give them too little credit for 
 originality and forethought. For a long time 
 there existed in America a superstition which 
 attributed to these men a sort of omniscience 
 in matters of statesmanship ; but the pendulum 
 has now swung in the opposite direction, and 
 it is the habit, particularly among certain Eng- 
 lish critics, to treat the American institutions 
 as a mere growth, a development of the British 
 political system, in which deliberate creation 
 had but little share. No doubt some of the 
 most salient features of the American govern- 
 ment, such as the single executive and the 
 two houses of the legislature, were suggested 
 by similar institutions in the mother country ; 
 yet even these were by no means simply copied 
 or accepted under the blind influence of asso- 
 ciation or precedent, and in the convention
 
 DEMOCRACY AND THE CONSTITUTION. 89 
 
 which framed the Constitution of the United 
 States they were carefully discussed, and 
 adopted on account of a distinct belief in their 
 utility. 
 
 A mere sentiment of respect for traditional 
 principles, or for private rights, may for a time 
 have some effect in protecting a minority from 
 hostile legislation, but in a progressive country, 
 where public affairs are fearlessly discussed, it 
 will not long stand the strain to which it is 
 constantly subjected ; and even if this senti- 
 ment is embodied in a formal document, set up 
 as a caution to the government, and as a code 
 of moral precepts which ought to be followed, 
 there will be no difficulty in finding most ex- 
 cellent reasons for violating its principles. 
 Danger to the state, imperative political neces- 
 sity, etc., are excuses which commend them- 
 selves readily to any one who desires a change. 
 The refusal by the possessor of political power 
 to make use of it, requires the exercise of great 
 self-restraint; and the art of framing a limited 
 government, like the art of civilization itself, 
 consists not only in developing the habit of 
 self-control, but even more in removing temp- 
 tation, and in making that self-control as little 
 irksome and, indeed, as little conscious as pos- 
 sible. 
 
 Now there are three devices which are capa-
 
 90 ESSAYS ON GOVERNMENT. 
 
 ble of promoting this result: first, an arrange- 
 ment such that no organized political body can 
 feel that the laws depend solely upon its own 
 will, can feel, in other words, that it has 
 power to do whatever it pleases ; second, the 
 creation of several independent political bodies, 
 each of which is restrained by the presence of 
 the others ; and, third, a process by which 
 every possessor of political power can be made 
 amenable to some final authority which will 
 prevent him from overstepping the bounds 
 prescribed for his action. Neither of these 
 three things would stand long by itself, for they 
 are dependent each upon the others, and form 
 parts of one complete system, but for the sake 
 of convenience and clearness it may be well to 
 consider them separately. 
 
 The first device I have mentioned for facili- 
 tating political self-control is an arrangement 
 such that no organized public body can have a 
 sense of its own omnipotence, and in a democ- 
 racy this means that the mass of the people, 
 in which final and irresponsible power resides, 
 must not be an organized body ; must not, in 
 other words, be in the habit of expressing its 
 will by transacting public business directly, as 
 was the case in Athens. It means also that 
 there must exist no single body of representa- 
 tives which has absolute authority to express
 
 DEMOCRACY AND THE CONSTITUTION. 91 
 
 the popular will. It implies, in short, a sys- 
 tem which will make it impossible for a desire 
 to violate those fundamental principles which 
 it is the object of the Constitution to maintain, 
 to organize and manifest itself as a popular de- 
 mand, or which will make this so difficult that 
 it will happen only after the matter has been 
 long considered, and the majority in favor of it 
 is overwhelming. For this purpose political 
 power must be divided among several bodies, 
 no one of which represents the sovereign peo- 
 ple, or has authority to express the popular 
 will, except to a limited extent. Beyond the 
 power intrusted to these bodies the expres- 
 sion of the popular will ought to involve an 
 elaborate process, and be surrounded with con- 
 siderable formality, so that a change in the 
 laws, which does not lie within the scope of 
 ordinary legislation, may not take place with- 
 out the greatest possible amount of discussion 
 and reflection. Like the bulkheads in a ship, 
 which keep a loose cargo steady while the ves- 
 sel is rolling, and prevent it from shifting to 
 one side, these divisions of political power are 
 very effective in preventing public opinion from 
 surging violently in one direction, and destroy- 
 ing the equilibrium of the state. The object 
 of such a system is, as I have said, to hinder 
 any development or expression of popular desire
 
 92 ESSAYS ON GOVERNMENT. 
 
 except within certain prescribed limits ; and in 
 the United States, where these principles have 
 been applied, it is surprisingly difficult to find 
 out the opinion of the American people upon 
 a matter with which Congress has no power 
 to deal. Take, for example, the subject of a 
 national law regulating rent, and suppose a real 
 demand for it. Such a law could be enacted 
 only by means of an amendment to the Federal 
 Constitution, and this requires the consent of 
 three quarters of the States. But how can it 
 be known whether that number of States are 
 in favor of the measure or not ? They have no 
 common assembly in which their opinions on 
 changes in the Constitution are expressed. 
 Congress can proclaim its own views, but Con- 
 gress has no authority to speak on the subject 
 either for the nation or for the States, nor 
 would any vote it might pass be regarded as 
 an expression of popular will on a matter not 
 legally within its competence. The people of 
 the several States possess no common organ 
 for making their opinions upon such a subject 
 known, and the only way to discover their 
 wishes is to propose a definite amendment to 
 the Constitution, and see whether it is rati- 
 fied by the required number of States ; a pro- 
 cess which is so cumbrous and uncertain that it 
 is sure never to be attempted unless the amend-
 
 DEMOCRACY AND THE CONSTITUTION. 93 
 
 ment is almost universally demanded, and its 
 adoption is virtually beyond a doubt. The 
 same thing is true to some extent in the sepa- 
 rate States. In almost all of them an amend- 
 ment to the Constitution of the State can be 
 adopted only by popular vote, 1 and the people 
 have no means of expressing their views upon 
 the propriety of an amendment until it is sub- 
 mitted to them at the polls, for the distinction 
 betAveen a constitution and ordinary statute 
 law is so clearly recognized that a vote of the 
 legislature which touches the former is not re- 
 garded as at all equivalent to an expression of 
 the popular will. 
 
 In order to make self-restraint as easy and 
 unconscious as possible, it is important that the 
 people should not be constantly in the habit of 
 organizing and passing laws directly ; and it is 
 no less important, as I have pointed out, that 
 political power should be divided among sev- 
 eral bodies, no one of which has authority to 
 declare the popular will, except within certain 
 defined limits. The division of power in the 
 United States is twofold ; and while other prin- 
 
 1 In many of the States a general revision of the Constitution 
 can be undertaken by a convention specially elected for that pur- 
 pose, after the question of calling the convention has been decided, 
 in the affirmative by popular vote, and in some of these cases the 
 work of the convention need not be submitted to tha people for 
 ratification.
 
 94 ESSAYS ON GOVERNMENT. 
 
 ciples of division can readily be imagined, the 
 system in use here has the advantage of hav- 
 ing stood the test of actual experiment. 
 
 In the first place, power is divided territori- 
 ally, if I may be allowed so barbarous an ex- 
 pression ; that is, it is placed partly in the 
 hands of the central or federal government, 
 whose authority is absolute within the limits 
 prescribed for its action, and partly in those of 
 the local or state governments, which are also 
 supreme in the sphere reserved for them, 
 matters of more common interest being allot- 
 ted to the federal government; those whose 
 bearing is comparatively local, to the several 
 States. The importance of such a division of 
 power, in preventing any one political body 
 from wielding the whole force of the nation, is 
 obvious; and although it was not deliberately 
 adopted by the people for the sake of limiting 
 the power of their own representatives, but 
 arose from the jealousies of the original States, 
 and from their dread of submitting themselves 
 unconditionally to a common government, yet 
 it has become an integral part of the polity of 
 the nation, and is as necessary for restraining 
 popular impulse as the other principle of divi- 
 sion which we are about to consider. 
 
 In the second place, the power of each gov- 
 ernment, whether state or federal, is distrib-
 
 DEMOCRACY AND THE CONSTITUTION. 95 
 
 uted among several representative bodies. It 
 is separated into legislative and executive (a 
 distinction which deserves a more philosoph- 
 ical study than it has yet received) ; and the 
 legislative power is vested partly in two cham- 
 bers which possess the entire right of initiative, 
 and partly in a single chief magistrate who is 
 intrusted with a qualified veto. The executive 
 power, on the other hand, is commonly said to 
 be wholly in the hands of the chief magistrate, 
 but as a matter of fact this also is divided to a 
 very great extent. In the federal government 
 it is shared in large measure by the Senate ; 
 and in many of the States it is not only very 
 much under the control of a council or senate, 
 but a considerable portion of it is intrusted to 
 permanent boards or commissions, which are 
 only very partially subject to the authority of 
 the governor, a state of things which is in 
 some degree true of the national government 
 also. In many of the States, indeed, a number 
 of the great executive officers, such as the at- 
 torney-general and the secretary and treasurer, 
 are elected by the people, and are in conse- 
 quence almost completely independent. 
 
 It will perhaps be noticed that, in speaking 
 of the separation of powers, the judiciary has 
 been omitted. This is because the courts, 
 while exercising a very great influence upon
 
 96 ESSAYS ON GOVERNMENT. 
 
 the course of events, and wielding in reality a 
 vast authority, do not possess political power in 
 at all the same sense as the legislature and the 
 executive. Their acts are not arbitrary, like 
 those of the other departments of the govern- 
 ment ; and in making use of their most exalted 
 function, that of putting a construction upon 
 the Constitution, they attempt to carry out the 
 popular will only so far as it has found its ex- 
 pression in the instrument they interpret. 
 
 The second contrivance I have referred to, 
 as an aid to self-control on the part of the sov- 
 ereign people, is the creation of several inde- 
 pendent political bodies, each of which is re- 
 strained by the presence of the others. The 
 division of power would clearly be a mere sham 
 if the possessors of the several portions of it 
 were not independent ; if one of them, for ex- 
 ample, could overawe or coerce the others ; 
 .and in order that each one may feel that its 
 power is limited, it is essential that they should 
 all, actually as well as legally, enjoy complete 
 liberty of action. In this case, like individ- 
 uals in social life, they exercise a strong re- 
 straining influence upon one another, which 
 tends to prevent any one of them from commit- 
 ting a breach of conventionality ; a breach, that 
 is, of the rules of conduct which the others 
 consider it proper to observe. The existence,
 
 DEMOCRACY AND THE CONSTITUTION. 97 
 
 in other words, of so many political bodies, all 
 obeying the principles of constitutional law, 
 tends to form and preserve a public morality 
 on the subject which helps to prevent viola- 
 tions of those principles. Now the mere legal 
 division of power will by no means secure the 
 independence of the bodies among which it is 
 distributed.- In England, the crown still pos- 
 sesses by law almost the whole executive au- 
 thority, and no one has ever doubted that 
 a statute to be valid must pass the House 
 of Lords, and receive the royal assent, but 
 in reality the royal power has vanished, and 
 the peers are unable to resist the House of 
 Commons. The immediate cause of this is to 
 be found, it is true, in the system of a re- 
 sponsible ministry ; but there can be no doubt 
 that if such an institution had never grown 
 up, some other method of bringing about the 
 same result would eventually have been de- 
 vised, because hereditary personal government, 
 whether by a monarch or a privileged aristoc- 
 racy, has long ceased to be possible in Great 
 Britain. 
 
 In a nation composed of different political 
 classes or estates, each of which is in itself a 
 source of real power, an effective division of 
 political authority is natural and easy ; but 
 where the people is the sole political element,
 
 98 ESSAYS ON GOVERNMENT. 
 
 it is necessary to make an artificial balance of 
 independent forces, and this can be done only 
 by giving to each of the public bodies among 
 which power is divided a popular basis, so that 
 every one of them may be to some extent a 
 representative of the sovereign people. It is 
 also necessary that eacli of these bodies should 
 derive its authority from an independent source ; 
 for if one of them were appointed or elected 
 by another, it could not fail to be very much 
 under the control of the body to which it owed 
 its power. If the President of the United 
 States, for example, were elected by Congress, 
 he would be unable to maintain his indepen-\ 
 dence in face of the houses, but under the present 
 system he is as truly the representative of the 
 sovereign people as Congress itself. Andrew 
 Jackson, indeed, habitually assumed for himself 
 a sort of monopoly of the privilege of repre- 
 senting the masses ; and although later presi- 
 dents have been unable to perpetuate such a 
 claim, the veto has never ceased to be freely 
 exercised, and, strange to say, the use of it is in 
 most cases highly popular. It is not necessary 
 that every person to whom authority is in- 
 trusted should be elected directly by popu- 
 lar vote, but it is essential that he should not 
 be chosen by a body whose power he is ex- 
 pected to counterbalance. This, however, is
 
 DEMOCRACY AND THE CONSTITUTION. 99 
 
 merely a negative precaution, and will not by 
 itself insure either real independence, or that 
 divergence in point of view which is requisite 
 for an effective division of power. To obtain 
 this result, a delicate adjustment of political 
 forces is necessary, and there is no feature of 
 the American government which shows more 
 ingenuity and skill than the contrivances which 
 prevent the different representative bodies from 
 being mere fac- similes of each other, and at 
 the same time preserve their equality in point 
 of power. In this matter, the success of the 
 framers of the Constitution probably exceeded 
 their expectations, for it is said to have been 
 long believed that the Senate of the United 
 States, which began its career as an assembly 
 decidedly inferior in influence to the House 
 of Representatives, would gradually lose much 
 of the authority it possessed ; but it turned 
 out that the longer term of office, the share 
 of executive power, and the fact that a sena- 
 tor represented an entire community, while a 
 member of the House stood for an unorganized 
 strip of territory, were enough to induce men 
 of eminence and party leaders to prefer the 
 smaller body, and thus the second chamber has 
 not only been raised to a position of equality 
 with the first, but has shown itself at times 
 decidedly the superior. The Federal Senate
 
 100 ESSAYS ON GOVERNMENT. 
 
 has not only achieved greatness for itself, but 
 it has reflected a part of its glory upon the 
 second chambers of the several States, although 
 these bodies possess in general few of the ad- 
 vantages which have made the success of their 
 prototype, for it is no doubt due in large meas- 
 ure to this borrowed lustre that a transfer from 
 the House to the Senate of a State is looked 
 upon as a promotion, a state of things neces- 
 sary in a democratic country to prevent the 
 smaller body from occupying a distinctly in- 
 ferior position. 
 
 There is another element which is not with- 
 out influence in maintaining the independence 
 of the bodies among which power is divided, 
 but which has an especial importance in rela- 
 tion to what I have termed the territorial divi- 
 sion of power ; and that is, the corporate senti- 
 ment. The real independence of the state 
 governments is due to the fact that each of 
 them has its own history, its own traditions 
 and associations, its own government and laws, 
 and is, in short, a separate community. It 
 would be impossible to establish a federal re- 
 public in France with the departments as con- 
 stituent members, because the French depart- 
 ments are not communities with a feeling of 
 common interests and common ties, but mere 
 geographical divisions, and the central power in
 
 DEMOCRACY AND THE CONSTITUTION. 101 
 
 such a federation would sweep aside any local 
 opposition to its will with perfect ease. Com- 
 munities cannot be manufactured by law. 
 They are the result of a slow growth, but their 
 existence is essential to any real limitation upon 
 the arbitrary will of the central government; 
 for without the sentiments which they call out, 
 the local authorities can never possess that 
 spirit of self-reliance which is an indispensable 
 factor in any true division of power between 
 the nation and its parts. 
 
 The third and last thing I have mentioned, 
 as an assistance to popular self-control, is a 
 process by which every possessor of political 
 power can be made amenable to some final 
 authority which will pi-event him from over- 
 stepping the bounds prescribed for his action. 
 This is a necessary feature in any effective 
 system of dividing power, because without it 
 there is nothing to hinder one branch of the 
 government from gradually extending its au- 
 thority, and encroaching on the others, until 
 these become so enfeebled as to be unable to 
 resist, and then all separation or limitation of 
 power is at an end. The division of political 
 authority, and the control of public officers 
 by some independent tribunal, are, indeed, cor- 
 relatives, neither of which, except under very 
 peculiar conditions, can long exist without the
 
 102 ASSAYS ON GOVERNMENT. 
 
 other. In his " Democracy in America " De 
 Tocqueville speaks of the great number of local 
 officers in the New England township, no one 
 of whom is subordinate to another ; and he 
 remarks that the responsibility to an official 
 superior, to which his countrymen were accus- 
 tomed in France, is replaced by the liability 
 to civil suit or criminal prosecution before 
 the ordinary courts of law. This, he says, to- 
 gether with the frequent elections, is relied 
 upon to prevent the town officers from being ar- 
 bitrary or negligent ; and he might have added 
 that it was the very fact that political power 
 was divided into so many fragments, so that 
 each officer stood alone, responsible to no one, 
 and therefore protected by no one, which made 
 it easy to bring him into court and compel him 
 to obey the common law. 
 
 It is important that the tribunal by which 
 the limits of the various powers in the State 
 are determined should be swayed as little as 
 possible by the political passions of the day ; 
 that it should be impartial, and base its deci- 
 sions upon principle and precedent; for if not, 
 it would be in the same position as any other 
 political body, and would in its turn require to 
 be watched and restrained from exceeding its 
 proper functions. It is also essential that this 
 tribunal should not be brought into direct con-
 
 DEMOCRACY AND THE CONSTITUTION. 103 
 
 flict with the government, because it would 
 certainly be beaten in the struggle, and shorn 
 of its power ; and it is no less necessary to pre- 
 vent questions about the limitations of power 
 from arising in such a form that the whole 
 weight of the State is on one side, and the 
 individual on the other. The American has 
 attempted to satisfy all these requirements by 
 confiding the duty of deciding questions involv- 
 ing the limitations of the different branches of 
 the government to the courts of law. By this 
 means he has secured a tribunal which is im- 
 partial in a high degree, and decides according 
 to fixed rules. He has also made it difficult 
 for the State to bring a pressure to bear upon 
 the court or the individual, because the court 
 settles questions concerning the limits of polit- 
 ical power as it does other points of law ; that 
 is, it decides them only when they are raised in 
 the course of an actual suit between private 
 persons, or between parties who appear before 
 it in that character. By this means, the inter- 
 pretation of the Constitution has been taken out 
 of politics, as far as possible, while the princi- 
 ples established by that instrument have been 
 put on the same footing as other rules applied 
 by the courts, and made, as it were, a part of 
 the common law. At the same time the Amer- 
 ican system diminishes the danger of collision
 
 104 ESSAYS ON GOVERNMENT. 
 
 between the different political bodies among 
 which power is distributed, because these bodies 
 are not brought into direct contact, but act 
 each in its own way directly on the people, the 
 courts regulating conflicts of authority as they 
 arise. If Congress passes a law which ex- 
 ceeds the powers granted to it, the States 
 now that the doctrine of nullification is dead 
 do not raise the question of constitutional- 
 ity, and contend with the national government, 
 but the law goes quietly into the statute-book, 
 and any person who feels aggrieved by it brings 
 it before the courts, as he would the by-law of 
 a railroad company the validity of which he 
 wanted to test. 
 
 The American form of government, with the 
 immense power it gives to the courts, could not 
 exist among a people whose reverence for law 
 and whose love of litigation were not very 
 great; nor could it endure without a provision 
 for amendment, which acts as a safety valve 
 and allows the steam to escape when the pres- 
 sure becomes too great. The system would 
 not be possible, moreover, if it did not rest on 
 a popular basis, for no merits it might possess 
 would have preserved it if, instead of being 
 established by the people, it had been a relic of 
 an aristocratic state of society. The French 
 publicists speak of the advantage possessed by
 
 DEMOCRACY AND THE CONSTITUTION. 105 
 
 a republic in dealing with insurrections, saying 
 that it can put them down without arousing 
 the sense of oppression which would be caused 
 by the same acts on the part of a monarchy ; 
 and this they ascribe to the fact that a republic 
 is the government of the people, and its acts 
 are the acts of the people themselves. Now 
 the same principle applies to the authority of 
 the American court in constitutional questions, 
 because a legislature which passes an unconsti- 
 tutional statute is usurping power over the peo- 
 ple, and the court, in refusing to enforce such a 
 statute, is giving effect to the popular will. In 
 order, therefore, to limit the power of the legis- 
 lature, and maintain the authority of the court, 
 it is necessary to draw a sharp line between 
 constitutional and other laws, and to make it 
 clear that the former embody in a peculiar de- 
 gree the wishes of the people. This is done 
 very thoroughly in America, where the action 
 of the legislature is sufficient for all ordinary 
 laws, while amendments to the Federal Consti- 
 tution are submitted for approval to the sev- 
 eral States, and changes ill the constitution of 
 a State require almost universally a vote of the 
 citizens. It is worthy of remark that the Swiss 
 institution of the referendum, while practically 
 long in use in the United States for constitu- 
 tional matters, would be quite out of place for
 
 106 ESSAYS ON GOVERNMENT. 
 
 ordinary laws, because it would obscure the dis- 
 tinction on which the whole American system 
 rests, and for this reason the growing tendency 
 of the people of the States to take a direct part 
 in legislation by means of constitutional amend- 
 ments is a danger, and if it goes too far will 
 be a serious injury, to our system of govern- 
 ment. 
 
 Such are the main features of a government 
 which, with the most complete acceptance of 
 democracy, aims at the protection of private 
 rights. No institutions can shield these en- 
 tirely from attack, because the number of rights 
 which can be effectually protected by the Con- 
 stitution is very limited, and the legislature 
 must always retain sufficient power to disturb 
 seriously all social relations, if it is determined 
 to make use for this purpose of the means at 
 its command. The utmost that a constitution 
 can be expected to do is to protect directly a 
 small number of vested rights, and to discour- 
 age and check indirectly the growth of a de- 
 mand for radical measures. How far the insti- 
 tutions of the United States have succeeded in 
 doing this cannot be determined with precision, 
 because it is impossible to estimate the effect 
 of the many social forces which have influenced 
 the history of the nation. To some observers, 
 it may seem that, in spite of all precautions,
 
 DEMOCRACY AND THE CONSTITUTION. 107 
 
 legislation in the New World is very radical, 
 and interferes seriously with the liberty of the 
 individual : but it must not be forgotten that 
 in America the people have had absolute power 
 in their hands far longer than in any European 
 country ; and if in addition to this it is consid- 
 ered how little respect the American has for 
 the past, and how ready he is to try experi- 
 ments, it becomes clear that his constitutions 
 must have exercised upon him a great restrain- 
 ing influence. England, France, Germany, and 
 Switzerland have passed laws which in some 
 ways interfere with private rights more than 
 any statutes enacted in the United States, and 
 more than one of these bids fair to go far be- 
 yond us in this direction before many years 
 have passed. 
 
 Of demagogism in America there is no lack, 
 but it is of a new and indigenous kind, and 
 might well be classified as the demagogism 
 of ambiguous phrases. If the demagogue ever 
 gets a foothold in the British Isles, he will be 
 cut after the well - known Athenian pattern. 
 He will stir up class against class, and try to 
 tempt the crowd to bear him on their shoulders 
 by offering to scatter among them the money 
 of the rich. But the American politician re- 
 sorts to no such arts. He usually attempts, on 
 the contrarv, to conciliate all classes ~*
 
 108 ESSAYS ON GOVERNMENT. 
 
 lights in such language as " a tariff for rev- 
 enue only, so adjusted as to protect American 
 industries ; " an expression intended to win the 
 votes of the free-traders without offending the 
 protectionists. He is a member of an army 
 of office-seekers, whose warfare is not directed 
 against private rights, or the interests of par- 
 ticular classes, or even against what might be 
 considered crying abuses, but is waged chiefly 
 with a rival army of office - seekers ; and the 
 spoils of victory, in the form of public offices, 
 are not distributed among the mass of voters, 
 or common soldiers of the party, but are al- 
 lotted strictly to the officers who have organ- 
 ized and disciplined these voters, to persons 
 more vulgarly called the workers or wire-pullers 
 of the party. The result is, that party agi- 
 tation in America does not in general involve 
 any threat against the property or rights of 
 private persons, and that those statutes which 
 may be classed as socialistic rarely find a place 
 in party programmes, and are not carried by 
 party votes. This state of things is not an ac- 
 cident. It is the natural consequence of the 
 political system of the United States. 
 
 Since this essay was written, Mr. Bryce's 
 book on the American Commonwealth has ap- 
 peared, in which a chapter entitled Laissez-faire
 
 DEMOCRACY AND THE CONSTITUTION. 109 
 
 is devoted to the matter we are considering. 
 The author comes to the conclusion that " the 
 new democracies of America are just as eager 
 for state interference as the democracy of 
 England, and try their experiments with even 
 more light-hearted promptitude.". The chapter 
 is followed by a number of tables intended to 
 prove the statement, but unfortunately these 
 were not compiled by Mr. Bryce himself, and 
 do not show the accuracy and thoroughness 
 which is so striking in the rest of the book. 
 Their defect lies in the fact that they cover 
 only a part of the subjects of state interference, 
 and do not extend to that one in which the ten- 
 dency of recent English legislation is the most 
 marked. 
 
 Owing partly to the condition of landed 
 property in England, partly to the promi- 
 nence of Irish questions, and partly to the 
 ascendency in English politics which the Man- 
 chester school of public men acquired during 
 the struggle for the repeal of the Corn Laws, 
 and retains to some extent even at the present 
 day, state interference in Great Britain has 
 been far more pronounced in the case of land 
 than in that of manufactures. The influence 
 of the last of these causes may be illustrated by 
 a comparison with Germany, where Bismarck 
 has for several years been at war with the man-
 
 110 ESSAYS ON GOVERNMENT. 
 
 ufacturers, and rested upon the support of the 
 land-owners, and where in consequence social- 
 istic legislation bears almost entirely upon me- 
 chanical industry. 
 
 It may be doubted whether state interfer- 
 ence even in the case of manufactures has gone 
 so far in America as in England, for it has been 
 confined here to^providing what employers shall 
 or shall not do, and has not directly touched 
 the liberty of the workman; but in England 
 there is a statute (Factory and Workshop Act, 
 1883) which provides not only that the owner 
 of a white-lead factory shall furnish hot and 
 cold water, soap, towels, brushes, separate 
 rooms for meals, and acidulated drinks, but 
 also subjects to a fine any person employed who 
 refuses to make use of these things. It is safe 
 to assert that the liberty of the free American 
 has never been so far infringed as to compel 
 him to use hot water and soap if he did nut 
 want to do so. If we take into account statutes 
 touching land, we shall see that Parliament is 
 not only more inclined to socialistic measures 
 than our legislatures, but is far more ready to 
 pass laws for the benefit of one class in the 
 community at the expense of others. One of 
 the few subjects, indeed, in which state inter- 
 ference has gone farther in America than in 
 England is the sale of 1'quor ; and the move-
 
 DEMOCRACY AND THE CONSTITUTION, 111 
 
 ment in this case is purely philanthropic, and is 
 designed to protect the poor, not against the 
 rich, but against themselves. 
 
 A short review of a few of the more promi- 
 nent acts recently passed by Parliament which 
 affect land will help to make this clear. 
 
 The Artisans and Laborers Dwellings Im- 
 provement Act, 1875, authorizes certain muni- 
 cipal authorities in the larger towns of England 
 and Ireland to take under certain conditions, 
 and on paying compensation to the owner, any 
 district covered with buildings in an improper 
 sanitary condition, tear down the houses, and 
 sell or let the land, for the purpose of carrying 
 out a scheme of improvement. A similar act 
 was passed for Scotland in the same year ; and 
 by amendments passed at various times, the 
 authority of municipal bodies under these acts 
 has been increased. 
 
 But Parliament has gone even farther in the 
 same path in a series of laws of which the 
 most striking is the Housing of the Working 
 Classes Act, 1885. This statute, which applies 
 to the whole of the United Kingdom, extends 
 the operation of an net of 1851, and under cer- 
 tain conditions empowers local authorities, ur- 
 ban and rural, when of opinion that more ac- 
 commodation is necessary for the working 
 classes, to buy land for that purpose, or take it
 
 112 ESSAYS ON GOVERNMENT. 
 
 on paying compensation, build cottages or lodg- 
 ing-houses, and let them for the use of laborers. 
 A statute of similar nature (Allotments Act, 
 1887) provides that when the local sanitary au- 
 thority in England is of opinion that there is a 
 demand for agricultural allotments or for pas- 
 turage for the use of laborers, and that these 
 cannot be obtained at a reasonable rent, it may 
 under certain conditions buy, hire, or take land 
 on paying compensation therefor, and let it to 
 laborers. In this statute there are provisions 
 designed to prevent the cost from exceeding 
 the receipts, but of course it must often happen 
 that such a result is impossible, and provision 
 is made for supplying the deficit by loans ; 
 which means, ultimately, by taxation. 
 
 The power which these acts give to cities 
 and other political bodies to distribute lands 
 and tenements among the poor at the expense 
 of the rich, or to become landlords on a large 
 scale and thereby regulate rents, is certainly a 
 long step in the direction of socialism. 
 
 Another statute that ought perhaps to be 
 mentioned is the famous Ground Game Act of 
 1880, which gives to tenants a right to kill hares 
 and rabbits on land let to them, and interferes 
 with the freedom of contract by providing that 
 any clause in a lease which restricts the right 
 given by the statute shall be void.
 
 DEMOCRACY AND THE CONSTITUTION. 113 
 
 Let us glance for a moment at the special 
 land acts passed for Ireland. The chief of 
 these is the Land Law (Ireland) Act, 1881, 
 which gives the tenant farmer a vested right in 
 the land unaffected by the ending of his term, 
 and provides that he may sell bis tenancy under 
 certain restrictions, and shall never have his 
 rent raised, or be turned out, except for non- 
 payment of rent, or a breach of certain condi- 
 tions fixed by the act. If, indeed, 'the landlord 
 wishes to use the land for certain purposes ap- 
 proved by the court, he may do so, but in that 
 case he must pay to the tenant a compensation 
 for disturbance. It is further provided that ei- 
 ther party may apply to the land court to fix a 
 fair rent, which shall then be binding for fif- 
 teen years. The next year another step was 
 taken in the Arrears of Rent (Ireland) Act, 
 1882, which provides that when a tenant has 
 paid his rent for the last year, but is indebted 
 for arrears which he is unable to discharge, the 
 Land Commission may pay- to the landlord one 
 half of these arrears on the tenant's account, 
 the other half being thereby extinguished. Five 
 years later it was enacted (Land Law (Ireland) 
 Act, 1887) that, owing to the fall in the price 
 of agricultural products there should be a whole- 
 sale revision of the fair rents already fixed, and 
 the court was empowered, when of opinion that
 
 114 ESSAYS ON GOVERNMENT. 
 
 a tenant is unable to pay rent without fault on 
 his part, to stay eviction and grant delay. 
 
 Parallel to these enactments there are corre- 
 sponding provisions to protect the farm laborer 
 against the tenant. By these the Land Com- 
 mission is empowered to order the tenant to 
 improve or build cottages for the laborers he 
 employs, and to assign them allotments. And 
 in such cases the Commission is authorized to 
 fix the rent to be paid by the laborer. 
 
 The most obvious effect of these acts is the 
 confiscation of a certain amount of rent to 
 whicli the landlord would otherwise be entitled. 
 It will also be noticed that they virtually trans- 
 fer the ownership of the land to the tenant, re- 
 serving to the landlord in its stead a constantly 
 diminishing rent charge. But the most omi- 
 nous feature of this legislation is to be found 
 in the fact that all right to arrange the terms 
 of a certain class of leases is taken away from 
 the parties interested, and vested in the gov- 
 ernment. A complete confiscation like that by 
 which the slaves were freed at the end of our 
 Civil War, although causing more suffering at 
 first, would probably entail on posterity less 
 danger than this plan of the control of rents 
 by the state. 
 
 The land acts for Ireland have been passed 
 under circumstances so peculiar, and, like the
 
 DEMOCRACY AND THE CONSTITUTION. 115 
 
 emancipation of the negroes to which I have re- 
 ferred, have been so much the result of a great 
 political movement, that they are not a fair cri- 
 terion of the tendencies of Parliament ; and yet 
 they are important as a symptom of the influences 
 at work in public opinion in England, especially 
 as provisions of a similar nature have been made 
 for the benefit of the Scotch crofters, although 
 no such political necessity exists in their case. 
 
 The Crofters Holdings (Scotland) Act, 1886^ 
 contains substantially the same provisions as 
 the Land Law (Ireland) Act, 1881, except 
 that the tenant cannot sell his holding. It 
 passes, however, to his heirs, and he may de- 
 vise it under certain restrictions. The act 
 gives to the Crofters' Commission power to fix 
 rents for the future, and in case arrears are due, 
 it gives the Commission authority to determine 
 what, part of them shall be paid, and to cancel 
 the rest. 
 
 The most astounding statute of all remains 
 to be mentioned, and it applies alike to Eng- 
 land, Scotland, and Ireland. By the Settled 
 Land Act, 1882, ;iny person having a life inter- 
 est in an entailed or settled estate was allowed 
 to sell, exchange, or lease the whole estate, pro- 
 vided he obtained the highest price or the best 
 terms possible ; the proceeds to be invested 
 and to follow the terms of the settlement.
 
 116 ESSAYS ON GOVERNMENT. 
 
 Now in 1885, when the enthusiasm about dwell- 
 ings for laborers ran very high, it was enacted in 
 the Housing of the Working Classes Act, 1885, 
 section 11, that a sale, exchange, or lease of 
 land under the Settled Land Act, for the pur- 
 pose of erecting on such land dwellings for the 
 laboring classes, might be made at the best 
 price obtainable for that purpose, although a 
 higher price might be obtained for some other 
 purpose. A life tenant, in other words, who 
 feels inclined to give a part of his life interest 
 to this kind of charity, is authorized to give 
 a corresponding share of the property of the 
 remainder-man to the same object. 
 
 These few specimens of British legislation 
 are enough for our purpose, the more so be- 
 cause they affect not only agricultural land, 
 which is subject to very peculiar conditions 
 in England, but also land in cities, the posi- 
 tion of which does not differ essentially in 
 England and America ; and bearing this in mind 
 it must be evident to every reader that tables 
 like those in Mr. Bryce's book, which leave 
 out all statutes touching land, give no fair 
 comparison of state interference on the two 
 sides of the Atlantic. It is safe to say that no 
 laws even distantly resembling those we have 
 reviewed have been enacted in the United 
 States ; and the conclusion is therefore just that
 
 DEMOCRACY AND THE CONSTITUTION. 117 
 
 England, although only beginning to be a de- 
 mocracy, has already gone farther in the direc- 
 tion of socialism than the communities on this 
 side of the ocean.
 
 III. 
 
 THE EESPONSIBILITIES OF AMERICAN LAW- 
 YERS. 
 
 Che val, perche ti racconciasse M freno 
 Giustiniano, se la sella 6 vota V 
 
 DANTE, Purgatorio, Canto vi. 
 
 IT is one of the popular fallacies of the 
 present day that the responsibility for the state 
 of the law rests entirely with the legislative 
 branch of the government. In reality, this re- 
 sponsibility is in every country shared to a 
 great extent by the legal profession ; and the 
 slow development of the law which results 
 from the writings of jurists, the judgments of 
 courts, and the customary practice of lawyers, 
 is, perhaps, more irresistible, because less no- 
 ticed, than the violent changes produced by 
 direct legislation. This is especially true in 
 countries where the decisions rendered in 
 actual cases furnish the main source of legal 
 authority ; but it is not the general respon- 
 sibility of lawyers, in lands where the com- 
 mon law prevails, that I wish to consider. It is 
 the more restricted but more weighty duty
 
 RESPONSIBILITY OF AMERICAN LAWYERS. 119 
 
 which is laid upon the legal profession in 
 America by the peculiar nature of our system 
 of government. 
 
 The immense power given to the courts by 
 our constitutions is so familiar to us that re- 
 mark upon it has become commonplace, and for 
 that very reason we sometimes fail to realize its 
 true significance as fully as does the foreigner 
 to whom it is a subject of astonishment. We 
 are in the habit of speaking of our political 
 system as a government by the people, carried 
 on by means of three coordinate branches, 
 the executive, the legislative, and the judi- 
 cial ; but when these expressions are examined 
 carefully, it is evident that they are mislead- 
 ing, and perhaps inaccurate, at least in the 
 sense in which they are commonly understood. 
 These three branches, in the first place, are 
 called coordinate, and work each in a separate 
 and defined province ; and yet, as must of 
 necessity be the case in human affairs, the 
 lines of demarcation are not always clear, and 
 unless confusion is to be endless, a power must 
 exist somewhere to determine the limits of the 
 separate provinces, and to decide controversies 
 in regard to them. The power to do this has 
 been confided to the courts in accordance with 
 the principles of the common law, if not by the 
 express provisions of the Constitution.
 
 120 ESSAYS ON GOVERNMENT. 
 
 The effect upon the other branches of the 
 government of a decision by the Supreme Court 
 on a point of constitutional law has given rise 
 to some difference of opinion, and although an 
 extended discussion of the question would be 
 interesting only to lawyers, a few words of 
 explanation may help to make the subject 
 clear to those who are not familiar with 
 law. A decision by the highest court of ap- 
 peal has two distinct effects. In the first 
 place, it is absolutely and finally binding on 
 the parties to the suit and all persons claiming 
 under them, but it is binding on no one else. 
 In the second place, it establishes a precedent 
 which, under ordinary circumstances, is morally 
 certain to be followed whenever the same ques- 
 tion is again presented to the court ; and it is 
 in consequence of this second effect of a deci- 
 sion that the court has virtually power to set- 
 tle the law. In the United States, all officers 
 of the government are subject to the ordinary 
 rules of law ; 1 and while the courts have no 
 general power to command the performance 
 of official duties, a public officer can be sued 
 or prosecuted for violations of the law, like 
 any other citizen, and his official position or 
 the orders of his superior are no defence to 
 
 1 There are a few exceptions, such, for example, as that of sol- 
 diers, in some of the States, when called out to suppress a riot, etc.
 
 RESPONSIBILITY OF AMERICAN LAWYERS. 121 
 
 Lira. If he has done any act in excess of his 
 authority, he is liable for it, precisely as any 
 one else who had done the same act would be ; 
 and it is for the ordinary courts of law to de- 
 cide whether the act in question is beyond his 
 authority or not. If, therefore, the court has 
 decided that a certain statute is unconstitu- 
 tional, every one knows that he may treat that 
 statute as invalid. He knows that the court 
 will give him redress against any person, 
 whether public officer or private citizen, who 
 injures him under color of its provisions ; and 
 he knows that he may resist any officer or 
 other person who attempts to enforce it, and 
 that he will be held harmless for so doing. In 
 many of the continental countries of Europe a 
 public officer is exempt from the ordinary pro- 
 cess of law, either by virtue of a provision 
 that he cannot be sued or prosecuted in the 
 ordinary courts, on account of any act done 
 under color of his office, without the consent of 
 a council composed of his official superiors, or 
 because his acts are cognizable only by special 
 administrative tribunals ; and where this is 
 true, it is clear that the judiciary cannot by 
 their decisions bind the other branches of the 
 government. There is, in those countries, one 
 law for the citizen and another for the public 
 servant; and, in fact, the rights and duties of
 
 122 ESSAYS ON GOVERNMENT. 
 
 the latter are regulated by a vast body of 
 special law known in France as the droit ad- 
 ministratif, which falls entirely outside the 
 jurisdiction of the ordinary courts. By such 
 means the executive has been made really 
 independent of the judiciary. 1 But nothing of 
 this kind is true in the United States. There 
 is here only one law, administered by one set 
 of tribunals, to whose jurisdiction every one is 
 subject. It follows that the law administered 
 by the courts is the one law of the land, bind- 
 ing on all persons and all branches of the 
 government. This must of necessity be the 
 case so long as public officers are amenable to 
 the ordinary process of the courts, and it is as 
 true of constitutional as of the common law, 
 so far at least as the rights of individuals are 
 concerned. The fact is, that a great deal of 
 confusion lias been introduced into this subject 
 by regarding the provisions of the Constitu- 
 tion as a statement of political maxims, instead 
 of a source of positive law. If it is admitted 
 
 as no one now attempts seriously to deny 
 
 that the Constitution has the effect of a law 
 enacted by a body of higher legislative au- 
 thority than Congress, the question is really 
 cleared of most of its difficulty, for no one doubts 
 
 l This matter is admirably treated in A. V. Dicey's Law of 
 the Constitution, London, 1885.
 
 RESPONSIBILITY OF AMERICAN LA WYERS. 123 
 
 that the executive is bound by a judicial con- 
 struction of a statute. 
 
 These statements must, of course, be under- 
 stood with the qualification that the courts have 
 authority to determine the limits of the pow- 
 ers granted by the Constitution only when 
 the question is presented in actual litigation. 
 But as there is no question of this sort which 
 may not arise in an actual case, the qualifi- 
 cation does not impair the correctness of the 
 principle. 
 
 The judicial branch of the government is, 
 therefore, the final arbiter and ultimate au- 
 thority on all matters touching the limits of 
 the powers granted by the Constitution. It 
 possesses no direct initiative, but it is the sole 
 and final judge of its own rights, as well as of 
 those of the executive and legislature; and in 
 this sense, while greatly inferior in force, it is 
 superior in authority to the other two branches 
 of the government. 
 
 Let us consider for a moment the nature of 
 the body in which this vast power is vested. 
 The executive and legislature are elected by 
 the people, or by some rough approximation to 
 a majority of the people, and in a general way 
 they are expected to carry out the wishes of 
 their constituents ; but the courts stand in a 
 vei*y different position. They are not, in the
 
 124 ESSAYS ON GOVERNMENT. 
 
 ordinary meaning of the word, the representa- 
 tives of the people, and it is not their mission to 
 enforce the popular will. To some extent, it is 
 true, the opinion has prevailed that the judges, 
 like all other public servants, ought to depend 
 for office upon popular esteem or approval ; 
 and in many States laws have been passed 
 providing that they shall be elected by the peo- 
 ple for limited terms. But, happily, the in- 
 fluence of such ideas appears to be on the 
 wane ; for the lengthening of these terms, and 
 the provisions forbidding reelection, seem to 
 indicate a return to a more rational view of the 
 functions of the judiciary. If it were the 
 duty of the courts to give effect to the wishes 
 of the people upon constitutional questions, 
 our government would be a truly absurd one. 
 The judicial body would then be a sort of ad- 
 ditional legislature extremely ill-fitted for its 
 task. But, in fact, the duty of the courts is 
 almost the reverse of this, because the popular 
 desire for a law may very well be presumed 
 from the fact that it has been passed by the 
 legislature, and the courts are given power to 
 treat a statute as invalid in order that they 
 may thwart the popular will in cases where that 
 will conflicts with the provisions of the Consti- 
 tution. Now, the Constitution is always older 
 than the law in question, and may be more
 
 RESPONSIBILITY OF AMERICAN LA WYERS. 125 
 
 ancient by a century, so that the court, in de- 
 ciding that a law is unconstitutional, declares, 
 in effect, that the present wishes of the people 
 cannot be carried out, because opposed to their 
 previous intention, or to the views of their re- 
 mote ancestors. All our constitutions have a 
 safety-valve, no doubt, in the power of amend- 
 ment, so that any of them can be changed by 
 a sufficient proportion of the voters, if they 
 persist long enough in the same opinion; but 
 this, while modifying, does not do away with 
 the fact that it is often the duty of our courts 
 to defeat the immediate wishes of a majority 
 of the people. Stated in such a form, the 
 power of our judiciary is certainly very start- 
 ling ; and it is even more surprising that a 
 power so extensive should have been placed in 
 the hands of a small number of men, chosen 
 exclusively from one profession, and this among 
 a people who are jealous of the influence of all 
 associations and professions, and who are impa- 
 tient of authority of every kind. The truth is 
 that our fathers, while admitting the right of 
 the people to govern within certain limits, be- 
 lieved that there were principles more impor- 
 tant than the execution of every popular wish, 
 and rights which ought not to be violated by 
 the impulse and excitement of a majority ; and 
 the constitutional provisions established by
 
 126 ESSAYS ON GOVERNMENT. 
 
 them remain in force to-day, because we sti]l 
 believe in the sacredness of the principles 
 which they preached. These principles stand 
 on the same ground as moral precepts. The 
 restraints they place upon us are not always 
 agreeable, but we continue to uphold them, be- 
 cause we believe in their inherent righteousness 
 and in their importance to the well-being of the 
 world. The duty of watching over and guard- 
 ing these fundamental principles, these legal 
 morals, if I may be allowed the term, of de- 
 veloping, explaining, and defending them, rests 
 with the legal profession ; and if this is true, it 
 is surely difficult to overestimate the responsi- 
 bility of lawyers in America. 
 
 I have said that the constitutional principles 
 taught by our fathers retain their force to-day 
 because we still believe in them ; but the state- 
 ment requires some explanation. For a long 
 time the Constitution of the United States was 
 the object of what has been called a fetish wor- 
 ship ; that is, it was regarded as something pe- 
 culiarly sacred, and received an unquestioned 
 homage for reasons quite apart from any virtues 
 of its own. The Constitution was to us what 
 a king has often been to other nations. It was 
 the symbol and pledge of our national existence, 
 and the only object on which the people could 
 expend their new-born loyalty. Let us hope
 
 RESPONSIBILITY OF AMERICAN LAWYERS. 127 
 
 that such a feeling will never die out, for it is 
 a purifying and ennobling one ; but to-day our 
 national union is so fully accomplished, that 
 we need no symbol or pledge to assure us of 
 the fact, and we can no longer expect the blind 
 veneration for our Constitution which prevailed 
 in the first decades of the century. This is a 
 time when all forms of government are being 
 put to the test, and our own must approve itself 
 by the excellence of the principles upon which 
 it is built. At the present moment the power 
 lodged with the courts appears to be one of 
 the most stable features of our government ; 
 and in fact we are so accustomed to see judi- 
 cial decisions readily accepted and implicitly 
 obeyed, that we cannot help attributing to 
 them a mysterious intrinsic force. We are nat- 
 urally in the habit of ascribing to the courts 
 a sort of supernatural power to regulate the 
 affairs of men, and to restrain the excesses and 
 curb the passions of the people. We forget 
 that no such power can really exist, and that 
 no court can hinder a people that is deter- 
 mined to have its way; in short, that nothing 
 can control the popular will except the sober 
 good sense of the people themselves. One has 
 only to turn his eyes to France to see the truth 
 of this statement. That country has had a 
 dozen constitutions, each MS sacred as such an
 
 128 ESSAYS ON GOVERNMENT. 
 
 instrument can be, but they have all been 
 short-lived, and no one supposes that their frail 
 existence could have been preserved by grant- 
 ing to the French courts the powers possessed 
 by our own. The cause of such a state of 
 things is obvious. The French constitutions 
 are the work of a party, and the people at 
 large are more anxious to accomplish their im- 
 mediate aims than to maintain the theoretical 
 doctrines embodied in these instruments. The 
 reverse of this is true here, and it is because 
 our people care more for their Constitution 
 than for any single law enacted by the legisla- 
 ture that constitutional government is possible 
 among us. So long as such a feeling continues, 
 our Constitution and the power of our courts 
 will remain unimpaired ; but if at any time the 
 people conclude that constitutional law, as inter- 
 preted by lawyers, is absurd or irrational, the 
 power of the judiciary will inevitably vanish, 
 and a great part of the Constitution will be 
 irretrievably swept away. Our constitutional 
 law depends for its force upon the fact that it 
 approves itself to the good sense of the people ; 
 and the power of the courts is held upon con- 
 dition that the precedents established by them 
 are wise, statesmanlike, and founded upon en- 
 during principles of justice which are worthy 
 of the respect of the community.
 
 RESPONSIBILITY OF AMERICAN LA WYERS. 129 
 
 How, then, it may be asked, are the courts 
 to make their decisions respected and approved 
 by the people ? By catching the current of pop- 
 ular opinion, and leaning towards that inter- 
 pretation of constitutional questions which the 
 wants of the day appear to demand? By no 
 means. Such a course is of all the best calcu- 
 lated in the long run to bring the judiciary 
 into disrepute, for it makes of them a political 
 instead of a legal body. To suggest it shows 
 an entire want of appreciation of the genius 
 of our people; and, in fact, the cases in which 
 the bench has suffered the greatest loss of influ- 
 ence have been those in which it has allowed 
 popular excitement, or party prejudice, which 
 is really the same thing, to affect its opinions. 
 What is needed to maintain the esteem in 
 which the courts are now held is a careful 
 study of the principles established by the Con- 
 stitution, and a clear development of the theo- 
 ries of constitutional law ; not theory in the 
 narrow sense of something contrasted and of- 
 ten irreconcilable with practice. Theory in this 
 sense is nothing more than a set of doctrines 
 at best the logical result of premises more or 
 less inaccurate. It is extremely easy to manu- 
 facture, and is justly an object of suspicion with 
 the public. What we need in the study of 
 Constitutional law is theory in a higher sense.
 
 130 ESSAYS ON GOVERNMENT. 
 
 We need that ripe scholarship which regards 
 theory as truth stated in an abstract form, to 
 be constantly measured by practice as a test of 
 its correctness ; for theory and practice are in 
 reality correlatives, each of which requires the 
 aid of the other for its own proper develop- 
 ment. It often happens, when some zealous 
 student propounds a striking principle whereby 
 all the problems in the world can be solved by 
 a simple formula, that a by-stander remarks : 
 "That may be all very well in theory, but it 
 will not work in practice." This saying is a 
 very common one, but it is founded on a most 
 pernicious error ; for either it uses the word 
 "theory" in the ridiculous sense of something 
 which ought to be true, and would be true if 
 the world were properly constructed, or else it 
 assumes that a theory may be correct although 
 inconsistent with the facts or practice which it 
 attempts to explain : whereas in reality a theory 
 which does not agree with the facts, or will not 
 work in practice, is simply wrong. A practice, 
 on the other hand, which is not guided and 
 enlightened by abstract or theoretical study 
 is short - sighted, unprogressive, and extremely 
 likely to be based upon a blunder. 
 
 It may seem to the reader that there is no 
 danger of committing either of these errors in 
 the study of constitutional law, but a careful
 
 RESPONSIBILITY OF AMERICAN LAWYERS. 131 
 
 review of the decisions on the subject, espe- 
 cially those to be found in some of tha state 
 reports, will convince him that the judges have 
 been constantly falling into one or the other 
 of these pitfalls, and sometimes, strange as the 
 feat may appear, into both of them at the same 
 time. There are many decisions in which the 
 court evidently had no principle of general ap- 
 plication in mind at all ; others where the opin- 
 ion is based upon some high-sounding but en- 
 tirely inaccurate generality, which, if literally 
 applied, would overrule half the cases and up- 
 set the whole fabric of constitutional law ; and 
 there are not a few cases in which the gener- 
 ality is enunciated with solemn gravity, while 
 it is perfectly clear that it had nothing to do 
 with the decision, which was determined by the 
 judge's general impression of the case. Let 
 ine not be supposed to apply any of this lan- 
 guage to the decisions of our great constitu- 
 tional lawyers. On the contrary, I have the 
 highest appreciation of the labors of these men, 
 and I feel that their country owes them an 
 eternal debt of gratitude. Marshall, who set 
 the tone for his successors, combined the wis- 
 dom of the philosopher with the good sense of 
 the magistrate, and it is precisely because these 
 qualities are so rarely united that I wish to in- 
 sist on the importance of both of them, and
 
 132 ESSAYS ON GOVERNMENT. 
 
 to signalize the evils which may flow from the 
 absence of either. 
 
 Those persons who regard the provisions of 
 the Constitution, and particularly the ones de- 
 signed to protect the rights of the individual, 
 not as a mere collection of arbitrary rules, but 
 as a set of principles adapted to promote the 
 happiness and prosperity of the people, will 
 find it easy to believe that these principles, 
 clearly expounded and wisely applied, cannot 
 fail to retain their hold upon the respect of the 
 citizen. 
 
 A careful study of constitutional law is espe- 
 cially important at this time, because the four- 
 teenth amendment to the Constitution of the 
 United States has furnished an opportunity for 
 a review of the decisions of the state courts 
 upon a most important branch of the law. 
 The first ten amendments to the Constitution, 
 including the provision that no one shall be 
 deprived of life, liberty, or property without 
 due process of law, were adopted, as it was 
 early settled, solely for the purpose of limiting 
 the power of Congress. They imposed no re- 
 straint upon the legislative power of the sev- 
 eral States ; and as Congress found few occa- 
 sions to violate this provision, the federal judges 
 were seldom required to put a construction 
 upon it. The state constitutions, however, con-
 
 RESPONSIBILITY OF AMERICAN LA WTERS. 133 
 
 tain similar clauses, and the state courts have 
 had abundant opportunities to interpret them. 
 Now, the fourteenth amendment, adopted after 
 the close of the civil war, contains a provision 
 extending the same limitation to the power of 
 the several States, and in this way the acts of 
 the state legislatures which are supposed to vio- 
 late the rights thereby secured have been drawn 
 within the jurisdiction of the courts of the 
 United States. The great branch of constitu- 
 tional law, therefore, which depends upon this 
 important part of the Bill of Rights is now be- 
 ing reviewed by the federal judges, who are not 
 bound by the decisions made in the state courts, 
 and yet have the benefit of the experience of a 
 century. 1 
 
 What I have said may appear to touch only 
 the judges, and to have no application to the 
 profession at large. But, in the first place, it 
 must be remembered that the judges are se- 
 lected from the ranks of the profession, and 
 that in the long run their views upon the im- 
 portance of constitutional law, and their sense 
 of the great responsibility of their position, 
 must be derived mainly from the profession in 
 which they were bred. It is not, however, only 
 
 1 In its recent decisions the Supreme Court seems to be in- 
 clined to attribute less importance to this provision than might be 
 wished.
 
 134 ESSAYS ON GOVERNMENT. 
 
 as the great mother of judges that the legal 
 profession is involved in this responsibility. 
 Every lawyer may become engaged in suits 
 turning upon points of constitutional law. He 
 then finds himself arguing questions which 
 among other nations are determined by a pop- 
 ular assembly or parliament of the realm, and 
 he argues before a court whose decision becomes 
 a precedent, often more difficult to shake than 
 any act of Parliament. Every American law- 
 yer is in a sense a statesman by virtue of his 
 profession, and may at any time find himself 
 called upon to take part in deciding questions 
 destined to leave a lasting mark upon the gov- 
 ernment of his country. His position differs 
 in one very important respect, it is true, from 
 that of a member of Parliament, for he ap- 
 pears on the side which he is retained to rep- 
 resent, and not on that which he believes to 
 be right, a state of things which it is use- 
 less to try to explain to a layman, and which 
 to a lawyer needs no explanation. And yet 
 even the layman may be ready to grant that 
 an exalted sense of the importance of the sub- 
 ject, broad views, and a strong grasp of con- 
 stitutional principles, on the part of the advo- 
 cates cannot fail to have a very great effect upon 
 the decision of the court. 
 
 Some cynic, who has had the patience to
 
 RESPONSIBILITY OF AMERICAN LAWYERS. 135 
 
 read so far, will no doubt remark that the 
 legal profession is not a charitable institution, 
 and that men practice law to get money and 
 support themselves, and not from philanthropic 
 motives. To this I answer that no profession 
 can be great unless the money-making aims of 
 the individual are leavened by a sense of the 
 importance of his vocation, and of the dignity 
 of the body that pursues it. A man who is 
 unconscious of the strength of the esprit de 
 corps of a great profession, of its power to in- 
 spire its members with a high and noble ambi- 
 tion, and to make itself an end and not a mere 
 means of making money, a man who has 
 never felt this has failed to appreciate one of 
 the most valuable of human qualities. He has 
 only to turn his eyes to the doctors to see its 
 force, and no careful search is required to find 
 it among lawyers. This is the quality which 
 we need to foster, because its influence upon 
 the moral and intellectual condition of the legal 
 profession is great, and because it is upon that 
 profession that we must chiefly rely for the 
 preservation of constitutional principles in this 
 country.
 
 IV. 
 
 THE THEORY OF THE SOCIAL COMPACT. 
 A SKETCH OF ITS HISTORY. 
 
 L'homme est n libre, et par-tout il est dans les fers. Tel 
 se croit le maitre des autres, qui ne laisse pas d'etre plus es- 
 clave qu'eux. Comment ce changement s'est-il fait V je 1'ignore. 
 Qu'est-ce qui peut le rendre k'gitime? je crois pouvoir rdsou- 
 dre cette question. ROUSSEAU, Contrat Social, livre i. chap. i. 
 
 THE political capacity of the English people 
 is due in large measure to their great ingenuity 
 in inventing political theories, and their obsti- 
 nate skepticism in refusing to believe in them. 
 Perhaps no better illustration of these qualities 
 can be found than in the history of that extra- 
 ordinary theory which, under the name of the 
 "social compact," influenced deeply the polit- 
 ical thought of Europe and America for two cen- 
 turies. And it is not the least singular fact 
 about a doctrine which proved so destructive 
 to the existing order of things in Europe that 
 it should have originated with a clergyman of 
 the Church of England, and should have been 
 invented by him for the purpose of defending 
 the Established Church against the attacks of
 
 THE THEORY OF THE SOCIAL COMPACT. 137 
 
 its enemies. But in fact the position of the 
 Church of England during tlie reign of Eliza- 
 beth, and for a good while afterwards, was ex- 
 tremely difficult; for it was assailed on one side 
 by the Catholics, who claimed the authority of 
 a divinely inspired church, and on the other 
 by the Puritans, who referred their system of 
 organization to the express teaching of the Bi- 
 ble. Under these circumstances, the "judicious 
 Hooker," as he was afterwards called, instead 
 of meeting his opponents on their own ground 
 by claiming a divine origin for the English 
 ecclesiastical system, parried their attacks by 
 denying that any religious body is under direct 
 divine guidance in all matters, and asserting 
 that laws for the government of the church 
 may be made by men, and that, if according to 
 reason and not repugnant to Scripture, they 
 are authorized by God. 
 
 Hooker begins his " Ecclesiastical Polity " l 
 with a discussion of laws in general. He treats 
 of the condition of men before the existence of 
 civil society, showing how force might then 
 be resisted by force, and no one had a right 
 to constitute himself a judge in his own case. 
 To escape from this state of things " there 
 was no way but only by growing unto com- 
 position and agreement amongst themselves, 
 i Published in 1594.
 
 138 ESSAYS ON GOVERNMENT. 
 
 by ordaining some kind of government public, 
 and by yielding themselves subject thereto." 
 A father, he says, has by nature a supreme 
 power within his own family, but rulers " not 
 having the natural superiority of fathers, their 
 power must needs be either usurped, and then 
 unlawful ; or, if lawful, then either granted or 
 consented unto by them over whom they ex- 
 ercise the same, or else given extraordinarily 
 from God, unto whom all the world is sub- 
 ject." Disregarding the last alternative, Hooker 
 bases government upon the consent of the gov- 
 erned. Not that these need give a special as- 
 sent to each separate law, for it is enough if 
 they agree, once for all, that their rulers shall 
 have authority to make laws for them. " And 
 to be commanded we do consent," he says, 
 " when that society whereof we are part hath 
 at any time before consented, without revok- 
 ing the same after by the like universal agree- 
 ment. Wherefore as any man's deed past is 
 good as long as himself continueth ; so the act 
 of a public society of men done five hundred 
 years sithence standeth as theirs who presently 
 are of the same societies, because corporations 
 are immortal ; we were then alive in our pre- 
 decessors, and they in their successors do live 
 still. Laws therefore human, of what kind so- 
 ever, are available by consent."
 
 THE THEORY OF THE SOCIAL COMPACT. 189 
 
 Such was the origin of the theory of the 
 social compact ; for although the idea that the 
 authority of the ruler is conferred upon him by 
 the people was not new, I am not aware that 
 any one before Hooker deduced the universal 
 lawfulness of laws from the voluntary associ- 
 ation of individuals to form a civil society. 1 
 
 It would not be safe, however, to make too 
 positive a statement in regard to Hooker's 
 claim as first inventor, and it is by no means 
 impossible that the theory may have been 
 originated by several persons independently 
 during the last part of the sixteenth and the 
 early part of the seventeenth centuries. The 
 course of thought had for many years been 
 such as to prepare men's minds to produce and 
 accept a theory of this kind ; and, indeed, the 
 doctrine that the authority of the king is de- 
 rived from the consent of his people had 
 recently become very prominent, and had de- 
 veloped until it assumed a form only a little 
 less complete than that of the theory ennn- 
 
 1 Fortescue, writing about the end of the Wars of the Roses, di- 
 vides monarchs into two classes : tho^e whose power is founded on 
 conquest, and whose authority is absolute ; and those whose power 
 is derived from a compact made by the community in forming a 
 body politic, and whose authority is limited. (De Laudibut Le- 
 gum Anglice, eh. 11-13 ; The Governance of England, ch. 1, 2). 
 He places the king of France in the former class, and the king of 
 England in the latter. This partial theory of a social compact may 
 have been drawn hv him from earlier sources.
 
 140 ESSAYS ON GOVERNMENT. 
 
 elated by Hooker. The desire to get rid of an 
 obnoxious monarch always acted as a strong 
 spur to drive men to opinions which made his 
 tenure of power dependent upon the will of his 
 subjects. The English and Scotch Protestants 
 smarting under the persecutions of the two 
 Marys, the Catholic league in France furious 
 with Henry III., and in their train the Jesuits, 
 all insisted on the right of deposing a king, and 
 often went so far as to justify his assassination. 
 But while their doctrines were similar they 
 were not identical; for the Jesuits maintained 
 that a king must be deposed by the Pope be- 
 fore he could be murdered by a subject, while 
 the Protestants recognized no such limitation. 
 
 The theory once started soon became pop- 
 ular, and before long it was put into practice ; 
 for the first social compact known to history 
 was made on the llth of November, 1620, in 
 the cabin of the Mayflower. It was clearly 
 no desire to uphold the polity of the Church 
 of England which induced the Pilgrim Fathers 
 thus to emerge from a state of barbarism ; 
 nor does this document appear to have been 
 the result of any democratic doctrines, but 
 rather, as Bradford tells us, of threats of in- 
 subordination on the part of certain persons 
 on board, whom no one had power to control, 
 because the patent issued in favor of the Pil-
 
 THE THEORY OF THE SOCIAL COMPACT. 141 
 
 grims covered only a part of the territory then 
 called Virginia, and did not extend to New Eng- 
 land. 1 The colonists found themselves much 
 in the position of the navigator who sailed off 
 his chart, and was obliged to devise a new one 
 to cover the emergency. The agreement was 
 probably signed by all the men of the party, 
 and it reads as follows : 
 
 "In y e name of God, Amen. We whose 
 names are underwriten, the loyall subjects of 
 onr dread soveraigne Lord, King James, by y e 
 grace of God, of Great Britaine, Franc, & Ire- 
 land king, defender of y e faith, &c., haveing 
 undertaken, for y e glorie of God, and advance- 
 mente of y e Christian faith, and honour of our 
 king & countrie, a voyage to plant y e first col- 
 onie in y e Northerne parts of Virginnia, doe by 
 these presents solemnly & mutualy in y e pres- 
 ence of God, and one of another, covenant & 
 combine our selves togeather into a civill body 
 politick, for our better ordering & preservation 
 & furtherance of y e ends aforesaid ; and by 
 vertue hearof to enacte, constitute, and frame 
 such just & equall lawes, ordinances, acts, con- 
 stitutions, & offices, from time to time, as shall 
 be thought most meete & convenient for y e 
 generall good of y e colon ie, unto which we 
 promise all due submission and obedience. In 
 
 1 Bradford's History of Plymouth Plantation, the 2. Booke.
 
 142 ESSAYS ON GOVERNMENT. 
 
 witnes wherof we have hereunder subscribed 
 oui' names at Cap-Codd y e 11. of November, 
 in y e year of y e raigne of our soveraigne lord, 
 King James, of England, France, & Ireland y e 
 eighteenth, and of Scotland y e fiftie fourth. 
 An : Dom. 1620." 
 
 The theory of the social compact was not 
 exhausted by this first experiment, but was 
 taken up by Hugo Grotius in his work, " De 
 Jure Belli et Pacis," which appeared in 1625. 
 He declares that the mother of Natural Law is 
 human Nature itself, and the mother of Civil 
 Law is that very obligation which arises from 
 consent, which deriving its force from the 
 Law of Nature, Nature may be called, ;is it 
 were, the Great Grandmother of this Law also. 
 Grotius, while inclining to absolute monarchy, 
 says that the questions, in what persons or 
 bodies sovereignty resides, how it is limited 
 and divided, and whether there exists a right 
 to resist and make war upon the sovereign, de- 
 pend upon the intention of the parties to the 
 contract. But although he founds his political 
 system on the social compact, he dwells upon 
 the theory but little, and it occupies only a 
 very small part of his book. The same thing is 
 true of Milton, who, in his ess&j entitled "The 
 Tenure of Kings and Magistrates," and writ- 
 ten in 1649, in justification of the execution of
 
 THE THEORY OF THE SOCIAL COMPACT. 143 
 
 Charles I., traces the outlines of the principles 
 afterwards so fully developed by Locke. 
 
 In 1651 the social compact received a new 
 and unexpected turn from the powerful intelli- 
 gence of Hobbes " the skeptic." This remark- 
 able man wrote during the Commonwealth, 
 and the aversion inspired by some of his re- 
 ligious views was increased to horror by his 
 political theories ; for he was an admirer of 
 absolute monarchy, and, strange to say, he 
 made use of the social compact to support his 
 doctrine of the unlimited power of the king. 
 Hobbes appears to have been the first person 
 who really understood the difference between 
 law and morality, and who saw clearly that 
 moral duties do not in themselves impose legal 
 obligations, or confer legal rights. In the " Le- 
 viathan " he lays down a series of laws of na- 
 ture, which he derives from the desire for self- 
 preservation and from the principle that each 
 man ought to be willing in his own interest to 
 strive for peace, and for that end to lay aside 
 part of his natural freedom, and be content 
 " with so much liberty against other men, as 
 he would allow other men against himselfe." 
 Thus he starts from a purely self -regarding 
 basis, and yet brings his precepts up to the 
 standard of the golden rule. The laws of na- 
 ture, he says, are binding only on the con-
 
 144 ESSAYS ON GOVERNMENT. 
 
 science of the individual, and he distinguishes 
 them carefully from laws, properly so called, 
 winch are "the word of him that by right hath 
 command over others ;" a doctrine more elab- 
 orately expounded by Austin in his masterly 
 work on jurisprudence. From one of his laws 
 of nature Hobbes draws a conclusion which 
 is sufficiently odd to deserve special notice. 
 He says that where one is trusted to judge 
 between man and man, it is a precept of the 
 law of nature that he judge equally between 
 them. "And from this," he continues, " f ol- 
 loweth another law, that such things as can- 
 not be divided, be enjoyed in common," or if 
 they can neither be divided nor enjoyed in com- 
 mon, that the entire right be determined by 
 lot. The lot may be arbitrary or natural, and 
 among natural lots he classes primogeniture. 
 Such an explanation of the law of primogeni- 
 ture is almost as ingenious as the one given in 
 " lolanthe," where the inheritance is likened to 
 a Derby Cup, a sort of racing-prize won by the 
 first-born. 
 
 Treating first of the state of nature where 
 " men live without a common power to keep 
 them all in awe," 
 
 " Hobbes clearly proves tbat every creature 
 Lives in a state of war by nature," 
 
 a war in which there is no law, and conse-
 
 THE THEORY OF THE SOCIAL COMPACT. 145 
 
 quently no injustice; in which each man, being 
 bound only by the duty of self-preservation, is 
 at liberty to make use of everything for that 
 end, and in which, therefore, each man has a 
 right to everything. It is to get themselves 
 " out from that miserable condition of warre," 
 he tells us, " that men, who naturally love lib- 
 erty, are willing to put a restraint upon them- 
 selves and live in commonwealths. A man, he 
 adds, may renounce or transfer any portion of 
 his liberty or rights, and when he has done so 
 he is bound not to hinder those to whom he has 
 granted aright from enjoying the benefits of it. 
 Any such hindrance, indeed, would be an injus- 
 tice. In this way Hobbes founds all justice and 
 law on the transfer of rights, and on that mu- 
 tual transfer of rights which he calls contract. 
 Having thus laid his foundations by a careful 
 course of reasoning, he declares that a common- 
 wealth is " made by covenant of every man 
 with every man, in such manner, as if every 
 man should say to every man, ' I authorize and 
 give up my right of governing myself, to this 
 man, or to this assembly of men, on this con- 
 dition, that them give up thy right to him, and 
 authorize all his actions in like manner.' This 
 done, the multitude so united in one person 
 is called a ' Commonwealth,' in Latin civitas. 
 This is the generation of that great ' Levia-
 
 146 ESSAYS ON GOVERNMENT. 
 
 than,' or rather (to speak more reverently) of 
 that ' mortal god,' to which we owe, under the 
 ' immortal God,' our peace and defense." 
 
 Such a description of the institution of a 
 commonwealth by a common contract to in- 
 vest the sovereign with what may be called a 
 universal power of attorney seems innocent 
 enough, but Hobbes ingeniously draws from it 
 some very startling conclusions. In the first 
 place, the contract cannot be set aside without 
 the consent of every one of the contracting par- 
 ties ; and certain rights having been transferred 
 to the sovereign, they cannot be withdrawn 
 from him without his own consent. In the 
 second place, the power conferred upon the 
 sovereign cannot be limited by any condition 
 or covenant in favor of the subject, because 
 the whole community cannot be a party to such 
 a covenant, since there is no community until 
 the contract instituting the sovereign has been 
 made ; and if the sovereign make any such cov- 
 enant with individuals it is of no avail, because 
 every breach of the covenant is the act of each 
 of those individuals done by the sovereign as 
 their agent. From the same principle it fol- 
 lows that the sovereign cannot wrong his sub- 
 jects or be punished by them, for each of his 
 acts is the act of his subjects themselves. In 
 short, the sovereign must in all cases be abso- 
 lute, and his rights are incapable of limitation.
 
 THE THEORY OF THE SOCIAL COMPACT. 147 
 
 Hobbes, like all writers of his time, divides 
 governments into monarchies, aristocracies, and 
 democracies; and while it does not strictly fol- 
 low from his premises, he denies the possibility 
 of a mixed form. It is perhaps unnecessary to 
 add that he regards the government of England 
 as an absolute monarchy. 
 
 Now although the apologists of absolute mon- 
 archy were not wanting in those days, the doc- 
 trines of Hobbes were not generally adopted by 
 them, but the theory of the social compact be- 
 came after his time almost the exclusive prop- 
 erty of the writers who maintained the rights 
 of the people. No doubt the personal unpopu- 
 larity of Hobbes contributed in no small degree 
 to this result, for his religious views, exagger- 
 ated as they were by public report, rendered his 
 name so detested as to throw discredit on his 
 political theories. This was true to such an ex- 
 tent that in 1683 the University of Oxford, in 
 an attempt to uphold Charles II. in his struggle 
 for absolute power, specially condemned certain 
 of the political doctrines of Hobbes, together 
 with those of Milton, Baxter, and other writers 
 of republican tendencies. But the chief reason 
 that the doctrine of divine right became the 
 weapon of the monarchy, while the theory of 
 the social compact was monopolized by the 
 more democratic school, is to be found in the
 
 148 ESSAYS ON GOVERNMENT. 
 
 nature of that theory itself, and of the times in 
 which it prevailed. There was nothing improb- 
 able in the claim of a divine origin for the es- 
 tablished order of things, but it was not reason- 
 able to suppose that popular government, which 
 had been almost unknown since the foundation 
 of Christianity, was under special divine pro- 
 tection. If, on the other hand, the origin and 
 legality of goveinment could be traced to the 
 consent of the people, it was hardly credible 
 that the people would have so tied their own 
 hands as to be unable to remedy abuses in the 
 system they had instituted ; and it was only na- 
 tural that the people should interpret the orig- 
 inal contract according to their present needs. 
 It is evident, moreover, that a theory which 
 magnified the importance of the people in the 
 institution of the state, and made light of that 
 of the king, was certain to be popular with the 
 multitude, and to be received with little favor 
 at court. 
 
 One of the most celebrated writers of the 
 popular school was the unfortunate Algernon 
 Sidney, to whose pen Massachusetts owes her 
 motto. Sidney was accused of connection with 
 the Rye House Plot, and at his trial the manu- 
 script of his " Discourses on Government " was 
 produced to prove his political sentiments, and 
 became, in fact, the cause of his death. These
 
 THE THEORY OF THE SOCIAL COMPACT. 149 
 
 " Discourses " were composed as an answer to 
 the " Patriarcha," a highly monarchical book, 
 written by Sir Robert Filmer; but although 
 they found all government upon consent, the 
 social compact is very far from being a promi- 
 nent feature in them. 
 
 The theory, or at least that part of it which 
 affirms that there is a contract between the king 
 and his people, came in very conveniently at the 
 time of the English Revolution ; not, indeed, as 
 a motive for depriving James II. of his throne, 
 but rather as a plausible justification for an act 
 which the nation had determined to commit. 
 The social compact helped to save the country 
 at that time from a very great embarrassment; 
 for the people were not yet worked up to the 
 point of deposing the king, and if it had not 
 been for this theory, and for James's disinter- 
 estedness in taking himself out of the way at 
 the right time, it is not clear how the English 
 would ever have got rid of him. As it hap- 
 pened, however, the Convention was able to 
 adopt the following resolution : " That King 
 James the Second, having endeavoured to sub- 
 vert the Constitution of the Kingdom, by break- 
 ing the original Contract between Kinf and 
 People, and having, by the advice of Jesuits, 
 and other wicked persons, violated the funda- 
 mental Laws, and withdrawn himself out of this
 
 150 ESSAYS ON GOVERNMENT. 
 
 Kingdom, has abdicated the Government, and 
 that the throne is thereby vacant." 
 
 It was only about two years after James II. 
 had lost his crown in this complicated way, 
 that John Locke, the philosopher, published 
 his " Treatises on Government," which, like Sid- 
 ney's "Discourses," were written as an answer 
 to Kilmer's book, again brought into promi- 
 nence by the utterances of the Jacobite divines. 
 These "Treatises" are deeply imbued with the 
 spirit of the common law, and may be said to 
 have been the standard of Whig principles for 
 a hundred years. Locke begins with the prop- 
 osition the only one common to all the writ- 
 ers on the social compact that in a state of 
 nature all men are equal, but, unlike Hobbes, 
 he is of opinion that the law of nature has a 
 binding force before the institution of civil 
 societies. He declares that no one ought to 
 injure another in his health, liberty, or posses- 
 sions ; and that inasmuch as in a state of na- 
 ture no one has any superiority or jurisdiction 
 over any one else, the execution of the law of 
 nature is put into every man's hands, so that 
 every one has a right to punish the transgres- 
 sors of that law. In addition to this right, 
 which belongs to every one, a person injured 
 has a special right to exact reparation from the 
 offender. Locke derives the right of property
 
 THE THEORY OF THE SOCIAL COMPACT. 151 
 
 in the state of nature from the appropriation 
 of such things as before lay in common, by be- 
 stowing labor upon them ; and as examples of 
 this he mentions the gathering of apples from 
 the trees, the killing of deer in the chase, and 
 the tilling and planting of land. According to 
 Locke, therefore, the law of nature invests a 
 man with all the rights of person and prop- 
 erty; and hence it can be no desire to acquire 
 legal rights that drives men into political so- 
 cieties, but a determination to protect and se- 
 cure those already in existence, and avoid that 
 state of war which, although not a necessary 
 condition of the state of nature, is a condition 
 likely to arise from the absence of a common 
 judge. A political society is formed, he says, 
 when a number of men agree to give up to 
 that society their individual right of punishing 
 offenders, and of exacting by their own force 
 redress for injuries. In so doing they consent 
 that the majority (unless there is a stipulation 
 for a larger proportion) shall have power to 
 make and execute laws necessary to accomplish 
 the purposes for which the society is formed, 
 and shall have authority to call upon each man 
 to employ his force to carry out the judgments 
 of the society. 
 
 In the course of his argument Locke takes 
 occasion to make a very clever hit at the doc-
 
 152 ESSAYS ON GOVERNMENT. 
 
 trine of divine right held by the Stuarts ; fur lie 
 declares that the difference between a state of 
 nature and a state of civil society consists in 
 the fact that in the latter there is a known au- 
 thority, to which every man may appeal : and 
 he adds, that any one who is not subjected to 
 such an authority is not in a state of civil so- 
 ciety. He then draws the conclusion that an 
 absolute prince is in a state of nature with 
 regard to his subjects. By becoming absolute, 
 a prince forfeits all lawful authority over his 
 subjects, and ceases to be a prince at all. The 
 course of a monarch who aspires to be abso- 
 lute resembles, in Locke's opinion, one of those 
 games of chance, in which the player progresses 
 until a throw of the dice brings him upon a 
 number marked with a ditch or other device, 
 when he is cast entirely out of the game, and 
 must begin again at the very beginning. 
 
 Locke goes on to discuss the position of the 
 descendants of the original members of the so- 
 ciety, and in this matter he is more logical than 
 the other writers upon the subject ; for, basing 
 the society upon the consent of the individ- 
 uals who compose it, he boldly proclaims that 
 no man can bind his children beyond the pe- 
 riod of their infancy, and that as each child 
 comes of age lie is free to sever his connection 
 with the societv, or to declare himself irrevo-
 
 THE THEORY OF THE SOCIAL COMPACT. 153 
 
 cably a member of it. Even without such a 
 declaration, a person who takes possession of 
 property within the commonwealth, or who re- 
 sides within its limits, consents to become a 
 member of the society so long as the enjoy- 
 ment or residence continues ; but he may at 
 any time dispose of his property, leave the com- 
 monwealth, and attach himself to another com- 
 munity. 
 
 After the State is created, the majority have 
 power to determine the form of government; 
 and this may be a democracy, an oligarchy, or 
 a monarchy, according to the character of the 
 body to which the power of making laws is 
 intrusted. When once established the legisla- 
 ture cannot be deprived of its power by the 
 people, unless it acts contrary to its trust, or 
 until it has reached the limits set for its con- 
 tinuance ; but if the legislature has put the ex- 
 ecutive power into other hands, it may resume 
 that power at its pleasure, and punish for mal- 
 administration of the laws. 
 
 The subject, however, that interests us the 
 most is to be found in the chapter which treats 
 " Of the Extent of the Legislative Power ; " 
 for, in Locke's opinion, the authority of the 
 legislature is not absolute, but limited by the 
 object for which men entered into society. He 
 declares that the legislature cannot be " abso-
 
 154 ESSAYS ON GOVERNMENT. 
 
 lutely arbitrary over the lives and fortunes of 
 the people," and that it " cannot assume to it- 
 self a power to rule by extemporary, arbitrary 
 decrees ; but is bound to dispense justice, and 
 to decide the rights of the subject, by promul- 
 gated, standing laws, and known authorized 
 judges ; " because it was precisely a desire to 
 avoid the inconveniences of having no fixed 
 laws and no certain judge that induced men to 
 form a political union. On the same ground 
 he holds that the " supreme power cannot take 
 from any man part of his property without his 
 own consent : for the preservation of property " 
 is " the end of government ; and that for which 
 men enter into society." 
 
 Locke proceeds to consider the effect of acts 
 of the executive and of the legislature done in 
 excess of their authority, and in a chapter de- 
 voted to the subject of tyranny lays down the 
 general proposition that " whosoever in author- 
 ity exceeds the power given him by the law, 
 and makes use of the force he has under his 
 command, to compass that upon the subject 
 which the law allows not, ceases in that to be a 
 magistrate; and acting without authority, may 
 be opposed as any other man who by force in- 
 vades the right of another." In his concluding 
 chapter on the " Dissolution of Government," 
 he carries the same idea still further, and finds
 
 THE THEORY OF THE SOCIAL COMPACT. 155 
 
 two internal causes of dissolution. The first 
 of these is presented when tlte legislature is al- 
 tei-ed ; and this happens when any single person 
 sets up his own will in place of the laws, hin- 
 ders the meeting of the legislature, or changes 
 the mode of election without the consent of the 
 people. In this and in all other cases where 
 the existing government is dissolved, the peo- 
 ple are at liberty to provide for themselves a 
 new one. The other cause of dissolution occurs 
 when the legislators or the prince act contrary 
 to their trust ; and the former act " against the 
 trust reposed in them, when they endeavour to 
 invade the property of the subject, and to make 
 themselves, or any part of the community, mas- 
 ters, or arbitrary disposers of the lives, liber- 
 ties, or fortunes of the people." " Whenever 
 the legislators endeavour to take away and de- 
 stroy the property of the people, or to reduce 
 them to slavery under arbitrary power, they 
 put themselves into a state of war with the 
 people, who are thereupon absolved from any 
 farther obedience, and are left to the common 
 refuge, which God hath provided for all men, 
 against force and violence." 
 
 In reading Locke we cannot fail to be struck 
 with the resemblance between some of his de- 
 ductions and the doctrines of our own jurists ; 
 and we might almost suppose that the "Trea-
 
 156 ESSAYS ON GOVERNMENT. 
 
 tises on Government " were intended to be a 
 commentary on the principles of American Con- 
 stitutional Law. For, in fact, the idea that a 
 statute which conflicts with the constitution 
 is invalid and has no legal effect was by no 
 means a pure invention on the part of Chief 
 Justice Marshall, as has often been supposed, 
 but is a very natural development of certain 
 principles of the English common law. 
 
 In the seventeenth century England went 
 through a period of intense political excitement 
 which culminated in the expulsion of James 
 II., and during this time political thought was 
 very philosophical, and busied itself with in- 
 quiries about the nature and origin of govern- 
 ment. But when the excitement subsided in 
 the reigns of William and of Anne, and was 
 finally extinguished under the House of Hano- 
 ver, political thought adapted itself to circum- 
 stances, and, putting off the speculative, as- 
 sumed a positive form. It is for this reason 
 that the theory of the social compact rapidly 
 lost its prominence in England, and in the 
 reigns of the Georges disappeared entirely from 
 view. In France, on the contrary, the middle 
 of the eighteenth century saw political thought 
 enter on a course of active speculation, and in 
 consequence the social compact reappeared with 
 renewed force and in the old form, although,
 
 THE THEORY OF THE SOCIAL COMPACT. 157 
 
 chameleon-like, it Imd changed its color to suit 
 its new surroundings. Montesquieu, the most 
 profound political thinker of his day, makes, it 
 is true, no use of the theory a fact which 
 illustrates his strong common sense. His 
 shrewdness, indeed, is nowhere better shown 
 than in his remarks upon Hobbes's notion that 
 the state of nature was a state of war ; for he 
 wisely suggests that man in a wild condition, 
 instead of living in a state of war, lived in a 
 state of abject terror, and that on seeing a 
 stranger his first impulse, far from being a pas- 
 sion to fight, was probably an uncontrollable 
 desire to run 'away. Rousseau, on the con- 
 trary, reveled in the theory of the social com- 
 pact. In it he thought he had discovered the 
 key to liberty, and the lamp that was to dispel 
 all ignorance and oppression from the world. 
 He developed it in a style so attractive, and in 
 a spirit so much in sympathy with the feelings 
 that were beginning to spread over Europe, 
 that his book by its popularity has eclipsed all 
 other works upon the subject, and he is com- 
 monly supposed to have been the author of the 
 theory. Rousseau's " Contrat Social" was first 
 published in 1762, :ind just as Locke's " Trea- 
 tises " are saturated with the principles of the 
 common law, so the "Contrat Social" fore- 
 shadows the doctrines of the coming Revolu-
 
 158 ESSAYS ON GOVERNMENT. 
 
 tion. 1 Tt is very evident to-day that France, 
 so long accustomed to a concentrated and des- 
 potic government, could not suddenly acquire 
 the habits of personal independence and liberty 
 to which the Anglo-Saxon system of govern- 
 ment owes its character. After clearing away 
 the wreck of feudalism, which had become a 
 mere obstruction in the path of progress, and 
 introducing equality of civil rights, the French 
 Revolution was destined to leave political power 
 as concentrated and despotic as before, only 
 substituting for the ancient king some assem- 
 bly, directory, emperor, or at the very best 
 some chance popular majority ; and no one of 
 these, however wise and just, however devoted 
 to the welfare of the people, could fail to be an 
 autocrat. 
 
 1 The differences between Rousseau's teaching and the course of 
 events in the French Revolution are more apparent than real. 
 His one restriction, for example, on the power of the people is to 
 be found in his doctrine that no law can be made which is not of 
 general application ; but this, of course, could not be applied in 
 any country where the reverence for law was no greater than it 
 was in France, and it was especially valueless in a country where 
 so much legislation was in reality accomplished by the decrees 
 of the magistrates. His theory that nothing can be enacted ex- 
 cept directly by an assembly of the whole people may, perhaps, 
 have contributed to the contempt with which the mob of Paris 
 treated the national legislature, but was clearly inapplicable to a 
 land of anvthing like the size of France. His admiration of the 
 state of nature, and his belief that civilization had been rather a 
 curse than a blessing, could not fail to have a disintegrating ten- 
 dency among a people unused to self-government.
 
 TUB THEORY OF THE SOCIAL COMPACT. 159 
 
 Assuming, like every other writer on the 
 social compact, that all men are by nature free, 
 and tliat civil society is an artificial contrivance, 
 which requires for its legality the consent of 
 every member, Rousseau inquires how a man 
 can assent to such an arrangement without in- 
 juring himself or neglecting his own interests, 
 and he proposes the following problem : To find 
 a form of association which sh-ill defend and 
 protect with the whole power of the community 
 the person and property of each member, and 
 by which each person, uniting with all, never- 
 theless obeys only himself, and remains as free 
 as he was before. This problem he solves by 
 supposing a complete transfer of each member, 
 with all his rights, to the society; because, he 
 says, since each man gives himself entirely to 
 the whole society, he gives himself to no in- 
 dividual, and the condition of all being the 
 same, no one has any interest to render it 
 burdensome for any one else. In another 
 place he expresses his idea of the original con- 
 tract by saying that each one of us puts him- 
 self and all his powers under the direction of 
 the general will (volonte generate}, and we 
 receive again eaclr member as an indivisible 
 part of the whole. The idea of this general 
 or common will which, as we shall see, is also 
 the will of each individual, is the distinctive
 
 160 ESSAYS ON GOVERNMENT. 
 
 part of Rousseau's theory and the keystone of 
 his whole system. 
 
 Rousseau next treats of the sovereign, which 
 is simply this same society as a whole consid- 
 ered in relation to its members ; and in his 
 opinion, it is contrary to the nature of the body 
 politic that the sovereign should be able to im- 
 pose upon himself a law which he cannot break, 
 for it would be simply a case of an individual 
 binding himself by a contract made only with 
 himself. He adds later that as a citizen in obey- 
 ing the law obeys only his own will, no ques- 
 tion of a limit to legislative power can arise. 
 No fundamental law of any kind, therefore, can 
 be binding upon the body of the people ; not 
 even the social compact itself. A guarantee 
 against the sovereign power is unnecessary, be- 
 cause the sovereign, being composed of all the 
 members of the community, can never want 
 to injure them as a whole, nor can it, he says, 
 injure particular individuals. The sovereign, 
 from the mere fact that he exists, is always 
 what he should be. These last two propositions, 
 although at first sight somewhat surprising, are 
 deduced from the very nature of sovereignty 
 itself, which is nothing else than the aforesaid 
 general will. This general will, however, does 
 not mean simply the common will of tlu mem- 
 bers of the society, but is used in a more re-
 
 THE THEORY OF THE SOCIAL COMPACT. 161 
 
 stricted sense, and denotes the common will of 
 those members only when applied to an ab- 
 stract or general question affecting the whole 
 community. When the common will is ap- 
 plied to an object of this sort, it is an act of 
 sovereignty, and is called a law ; but a deter- 
 mination upon any particular or personal matter 
 cannot be an act of the general will, because in 
 such a case there are two parties, the individual 
 and the state, who have not a common interest 
 and cannot have a common will. The will of 
 the latter is not general with regard to the 
 former, but is to him as the will of a stranger, 
 and since it is only to the general will that the 
 members of the society agree to submit them- 
 selves, a determination of this kind cannot be 
 an act of sovereignty. Rousseau refuses, there- 
 fore, to consider as laws at all what we terra 
 special or private laws ; at most they are de- 
 crees or acts of the magistrates which must 
 follow the provisions of general laws. The 
 question naturally presents itself, What is this 
 general will, and who has power to declare it? 
 To this Rousseau replies that it is the will of 
 the members of the community, and that no 
 one else h:is power to declare it ; nor can it be 
 delegated, because, although a man m;ty say 
 that his will is the same as that of another man 
 at any particular moment, or on any specific
 
 162 ASSAYS ON- GOVERNMENT. 
 
 question, yet lie cannot say that his will in the 
 future, and on any questions that may here- 
 after arise, will always be the same as that of 
 another person. It follows that the power of 
 making laws can be delegated neither to a 
 prince nor to a house of representatives, and, 
 while laws may be prepared and discussed by 
 them, they can be enacted only by all the mem- 
 bers of the community, duly assembled for the 
 purpose. For this reason Rousseau declares 
 that the English, who boast of their liberty, in 
 reality are not free. 
 
 Now it is all very well to talk of the general 
 will, as if laws were voted unanimously, but 
 every one knows that this is not the case; and 
 to keep up his fiction that each person obeys 
 only himself, and at the satae time to give to 
 the majority the power of legislation, Rous- 
 seau develops a most ingenious idea. He says 
 that each man desires the fulfillment of the gen- 
 eral will, and that, when a law is submitted to 
 the people, the question put to each man is not 
 strictly whether he approves of the law or not, 
 but whether it is in accordance with the gen- 
 eral will which he wishes to carry out. Each 
 man gives his advice thereon, and if a man is 
 in the minority it simply proves that he was 
 mistaken about the general will ; so that if by 
 chance his opinion had prevailed, he would
 
 THE THEORY Of THE SOCIAL COMPACT. 163 
 
 have done what lie did not want to do. A very 
 comforting doctrine, no doubt, to sweeten a bit- 
 ter pill. 
 
 Sovereignty being confined to the enactment 
 of laws, it is evident that there must exist in 
 the state subordinate authorities, charged with 
 the duty of executing the laws, carrying on 
 foreign relations, etc. ; and, as these duties do 
 not, in Rousseau's opinion, partake of the na- 
 ture of sovereignty, he rejects the doctrine of 
 the separation of executive, legislative, and 
 judicial powers, as advanced by Montesquieu. 
 He divides governments into monarchies, aris- 
 tocracies, democracies, and mixed forms, ac- 
 cording to the composition of the subordinate 
 authorities. These are established by laws, 
 but the selection of the persons to fill the va- 
 rious offices, being a particular and personal 
 matter, is not an act of sovereignty, and must 
 be accomplished by election, by lot, or by some 
 other method fixed by law. The powers and 
 rights of these authorities cannot rest upon con- 
 tract, because the sovereignty cannot be alien- 
 ated or limited, and hence the public officers, 
 and even the form of the government, may be 
 changed at any time by an exercise of the gen- 
 eral will. The author of the "Contrat S >oial" 
 is very decided on this point, and says that 
 every assembly of the people ought to be
 
 164 ESSAYS ON GOVERNMENT. 
 
 opened with these two questions : Is it the 
 pleasure of the sovereign to continue the pres- 
 ent form of government*? Is it the pleasure 
 of the people to leave in office the present in- 
 cumbents ? One can hardly imagine a greater 
 encouragement to revolution, or a more effec- 
 tive manner of bringing all citizens to the 
 polls. 
 
 Rousseau sees merits and faults in each form 
 of government, and wisely concludes that the 
 best one is not the same in every country, but 
 varies with the climate, the extent of the terri- 
 tory, and the habits of the people. 
 
 The apostle of liberty makes a most surpris- 
 ing application of his views on absolute sover- 
 eignty, at the end of his book, when discussing 
 the religious question. He thinks that there 
 ought to be a state religion, which every one 
 must accept on pain of banishment. He pro- 
 poses to allow no further persecution on this 
 ground, but adds that if any person, after hav- 
 ing declared his belief in the state religion, be- 
 haves as if he did not believe in it, he ought to 
 be punished with death, because he has com- 
 mitted the gravest of crimes : he has lied be- 
 fore the law. He enumerates the positive dog- 
 mas which this religion should contain, and 
 among them is to be found the sacredness of the 
 social compact. There is also a negative one,
 
 THE THEORY OP THE SOCIAL COMPACT. 165 
 
 the condemnation of intolerance, and on the 
 strength of this he insists that whoever says 
 there is no salvation outside of the church 
 ought to be driven from the state. In this 
 way, Rousseau would prevent religious intoler- 
 ance by making persecution a state monopoly. 
 Such must have been the motive of the gov- 
 erning board of a certain college in America, 
 which was for many years accused of filling its 
 vacancies exclusively with persons of one de- 
 nomination, not with any sectarian purpose, but 
 merely for fear that if a person of a different 
 faith were admitted he would try to fill the 
 board with members of his own church. I do 
 not assert that the charge was true, but it was 
 certainly somewhat amusing. 
 
 It is singular that among all the consti- 
 tutions in which the revolutionary period in 
 France was so prolific, there is no reference to 
 the social compact ; and it is even more strange 
 that these documents treat of the matter of 
 private rights rather from an English than a 
 French point of view. A superficial observer, 
 who should compare the Constitution of the 3d 
 of September, 1791, with the Constitution of 
 Massachusetts might well doubt which was the 
 French and which the American production. 
 The Frenchman solemnly condemns arbitrary 
 punishment ; proclaims the sacreduess of pri-
 
 166 ESSAYS ON GOVERNMENT. 
 
 vate property, insisting that it can never be 
 taken except in case of public necessity, and 
 then only upon due compensation; and declares 
 that the legislature has no authority to pass a 
 law violating any of the rights guaranteed by 
 the Constitution ; but yet it is not long before 
 he votes to execute the king and to confiscate 
 the property of the emigre*. The fact is that 
 Rousseau sympathized with the political senti- 
 ments of France far more than the Abbe Sieyes 
 and his fellow constitutional architects, while 
 the French people were much more readily in- 
 spired by the theories of Rousseau than by the 
 statesmanship of Mirabeau. 
 
 The great theory was not so neglected by the 
 constitution-makers on this side of the ocean ; 
 for, as the first social compact known to history 
 was made by the Pilgrim Fathers in the cabin 
 of the Mayflower, so the most elaborate, if not 
 the last, was made in part by the descendants 
 of these same men, and entitled the Constitu- 
 tion of the Commonwealth of Massachusetts. 
 Evidently this relapsing into a state of barba- 
 rism and recovering one's self by means of a 
 social compact was a favorite pastime with the 
 New Englanders. 
 
 The second and third clauses of the preamble 
 of the Constitution run thus : 
 
 " The body politic is formed by a voluntary
 
 THE THEORY OF THE SOCIAL COMPACT. 167 
 
 association of individuals : it is a social com- 
 pact, by which the whole people covenants with 
 each citizen, and each citizen with the whole 
 people, that all shall be governed by certain 
 laws for the common good. It is the duty of 
 the people, therefore, in framing a constitution 
 of government, to provide for an equitable mode 
 of making laws, as well as for an impartial in- 
 terpretation, and a faithful execution of them ; 
 that every man may, at all times, find his secu- 
 rity in them. 
 
 " We, therefore, the people of Massachusetts, 
 acknowledging, with grateful hearts, the good- 
 ness of the great Legislator of the universe, in 
 affording us, in the course of His providence, an 
 opportunity, deliberately and peaceably, with- 
 out fraud, violence, or surprise, of entering into 
 an original, explicit, and solemn compact with 
 each other ; and of forming a new constitution 
 of civil government, for ourselves and poster- 
 ity ; and devotedly imploring His direction in 
 so interesting a design, do agree upon, or- 
 dain, and establish, the following Declaration 
 of Rights, and Frame of Government, as the 
 CONSTITUTION OF THE COMMONWEALTH OF 
 MASSACHUSETTS." 
 
 Then follows the Declaration of Rights, in 
 which it is impossible not to see the influence 
 of Rousseau curiously combined with the prin-
 
 168 ESSAYS ON GOVERNMENT. 
 
 ciples of the common law, of Magna Charta, 
 and of the Bill of Rights ; for although our an- 
 cestors were deeply imbued with ideas which 
 found their theoretical expression in Locke's 
 "Treatises on Government," their imagination 
 was fired by the writings of the French phi- 
 losophers. From Montesquieu they borrowed 
 the doctrine of the separation of powers, which 
 has become so thoroughly a part of the Amer- 
 ican political system, and in fact they accepted 
 abstract theories as the basis of their political 
 practice to a far greater extent than any other 
 body of Anglo-Saxons has ever done before or 
 since. This is evident even in the very word- 
 ing of the Declaration of Rights which we are 
 considering; for when an assembly wishes to 
 declare the existence of a right which is not 
 dependent upon its own action, it naturally 
 uses the present tense, thus, "Every man has a 
 right ; " but if, on the other hand, the assembly 
 wishes to create a right, it uses what I may call 
 the future imperative, and says, " Every man 
 shall have a right." The first of these forms is 
 appropriate in making a statement, while the 
 second is the language of command. Now it is 
 worthy of remark that the French legislators 
 usually employ the former expression, while the 
 Anglo-Saxon, both in statutes and constitu- 
 tions, make use almost invariably of the lat-
 
 THE THEORY OF THE SOCIAL COMPACT. 169 
 ter. The Massachusetts Declaration of Rights, 
 
 O 
 
 however, proclaims these rights in the present 
 tense, with an occasional relapse into the future, 
 especially when treating of matters of detail. 
 
 The Constitution of Massachusetts was not 
 the last nor the most extraordinary application 
 of the social compact in this country, for the 
 rage for crude theory at one time attacked the 
 bench, and grave judges were heard to say that 
 a statute was invalid if repugnant to the prin- 
 ciples of justice and civil liberty. Even Judge 
 Story was carried away by this idea, and used 
 very loose language on the subject ; though he 
 never went quite so far as Chief Justice Hos- 
 mer of Connecticut, who said, in one case, 1 
 "With those judges, who assert the omnipo- 
 tence of the legislature, in all cases, where the 
 Constitution has not interposed an explicit re- 
 straint, I cannot agree. Should there exist, 
 what I know is not only an incredible suppo- 
 sition, but a most remote improbability, a case 
 of the direct infraction of vested rights, too 
 palpable to be questioned, and too unjust to 
 admit of vindication, I could not avoid con- 
 sidering it as a violation of the social compact, 
 and within the control of the judiciary." At 
 first sight this appears to be merely a ridiculous 
 
 1 Goshen v. Stonington, 4 Conn. Rep. 20D, at 225. See also the 
 cases collected in Cooley on Constitutional Limitations, 104 et seq.
 
 170 ESSAYS ON GOVERNMENT. 
 
 attempt to engraft a new doctrine upon the 
 common law, but however absurd the attempt 
 may have been, it was in reality a logical de- 
 duction from the teachings of John Locke, and 
 was not so unprecedented as one might sup- 
 pose. It was, indeed, long doubtful in Eng- 
 land whether the courts had not authority to 
 disregard an act of Parliament, if they consid- 
 ered it against natural equity or common right 
 and reason, because, in the words of Hobart, 
 "jura natures sunt immutabilia, and they are 
 leyes legum" Such a power was frequently 
 claimed by the judges, 1 and in one case, 2 at 
 least, Lord Coke actually refused to apply an 
 act of Parliament, on the ground that it made 
 a n.an a judge in his own case. Although the 
 claim was abandoned by the judges early in 
 the last century, yet the doctrine that the legis- 
 lature must respect private rights, and that no 
 one ought to be deprived of his property with- 
 out compensation, remained a cardinal principle 
 of English legislation until within the last few 
 years. This principle is protected in America 
 by the various constitutions, and it has been 
 settled that the courts have power to disregard 
 
 1 See Doctor and Student, c. vi. ; Day v. Savadge, Hobart, 85, 
 at 87 ; Calvin's Case, 7 Rep. 1, at 13 b and 14 a; City of London 
 . Wood, 12 Mod. 609, at 687. 
 
 2 Bonham's Case, 8 Rep. 114 a.
 
 THE THEORY OF THE SOCIAL COMPACT. 171 
 
 a statute only when it conflicts with some pro- 
 vision in these instruments. Hosmer's theory 
 has been entirely exploded, and the spectre of 
 a social compart has long ceased to disturb the 
 quiet labors of the bench. 1 
 
 I have so far made no reference to the Ger- 
 man writers, not because they do not deal with 
 the social compact, for after the middle of the 
 seventeenth century almost all of them devoutly 
 believed in it. In fact, they entirely adopted 
 and Germanized it, or, as some malicious critic 
 might say, in the words of Sheridan, they 
 treated it as gypsies do stolen children, dis- 
 figured it to make it pass for their own. There 
 are two reasons why I have not mentioned the 
 German writers before. The first is the lack of 
 space in this sketch to touch upon any one but 
 Kant, the most famous of them all, and his 
 writings are later than those we have so far 
 considered. A second reason is the existence 
 of certain peculiarities of thought characteris- 
 tic of the Germans, which are not to be found 
 among the really great writers of other races, 
 and which may be in some measure explained 
 by the political condition of the German peo- 
 ple. The most marked of the peculiarities to 
 which I refer is a tendency to confuse morality 
 
 1 That this doctrine has not yet completely lost its hold on the 
 public is proved by the correspondence in The Nntion last winter.
 
 172 ESSAYS ON GOVERNMENT. 
 
 and law. This may be said to be a universal 
 failing with the German publicists, and it is 
 this, more than anything else, that makes their 
 writings so difficult to read, and so unsatisfac- 
 tory when read. Another peculiarity, which, 
 although not so general, is nevertheless very 
 common with the Germans, is the attempt to 
 combine in the same political system certain 
 inviolable natural rights of individual citizens 
 with an unlimited authority on the part of the 
 sovereign. Hobbes and Rousseau, while differ- 
 ing so much in their views, agree in attributing 
 absolute authority to the sovereign power in 
 the state, and declare that the rights of the 
 subject are created by and are dependent upon 
 its will. Locke and our own forefathers, on 
 the contrary, start with certain natural legal 
 rights possessed by the citizens as individuals, 
 limit the authority of the sovereign power ac- 
 cordingly, and maintain that any attempt on 
 its part to violate these rights is itself unlaw- 
 ful. But the Germans, in trying to reconcile 
 the unlimited power of the state with the in- 
 violable rights of the citizens, only puzzle them- 
 selves afresh with the old conundrum, what 
 would happen if an irresistible force should 
 meet an immovable obstacle? 
 
 I have said that these peculiarities of thought 
 can be explained to some extent by the condi-
 
 THE THEORY OF THE SOCIAL COMPACT. 173 
 
 tion of the German race. The people had been 
 so long unaccustomed to taking any part in the 
 discussion of political affairs, and were so un- 
 used to transacting public business on juries, 
 etc., that, with a type of mind naturally meta- 
 physical, they very easily fell into an exces- 
 sively abstract and theoretical, as distinguished 
 from a positive and practical, way of looking at 
 political problems. It was but natural that the 
 German philosopher should not clearly separate 
 the study of law as it is from the study of law 
 as it should be, and this is but a step from the 
 confusion of law and morality. It was inevi- 
 table that he should fail to appreciate the 
 bearing of public policy on legal questions, and 
 should strive to found his legal system on d 
 priori reasoning ; that, to adopt an expression 
 of Judge Holmes, 1 we should find a character- 
 istic yearning in the German mind for an in- 
 ternal juristic necessity for law. The intro- 
 duction of the Roman law probably contributed 
 in some degree to these results ; for it is to be 
 observed that this law did not come to the 
 Germans as it did to the Romans, in the form 
 of a slow growth, but was received as a com- 
 plete system, and was accepted, not on account 
 of the veneration which is derived from long 
 habit and association, but because the German 
 
 1 Holmes on the Common Law, page 207.
 
 174 ESSAYS ON GOVERNMENT. 
 
 jurists were struck by the inherent justice of 
 its principles. A person who confuses the posi- 
 tive law with law as it should be, is easily led 
 to confuse the rights which the subject ought to 
 have with those rights which he actually pos- 
 sesses ; and we are not much surprised to find 
 such a person asserting at one moment that the 
 subject has certain inviolable natural rights, 
 and at another that the authority of the sover- 
 eign is unlimited. It is to be remembered also 
 that the Germans, like all Teutons, had a highly 
 developed sense of individuality, although dur- 
 ing the period of which we are speaking they 
 lived under autocratic governments; and we see 
 in their writings an almost pathetic longing for 
 personal independence coupled with an uncon- 
 querable respect for the established authorities. 
 Kant was, perhaps, the most German of ths 
 Germans, and in his writings the qualities to 
 which I have referred may be found very fully 
 developed. He published his first political trea- 
 tise in 1793, at the age of sixty-nine, as one of 
 a series of essays upon the proverb, " That may 
 be all very well in theory, but it will not work 
 in practice." The humor of discussing the so- 
 cial compact under such a title was unfortu- 
 nately lost upon the author, who attempted to 
 show that, although such a compact could not 
 be looked upon as an actual fact, yet as a theory
 
 THE THEORY OF THE SOCIAL COMPACT. 175 
 
 it was the basis of certain political principles 
 which ought to be acted upon in practice. The 
 only other work of much importance in which 
 he discusses the subject is his " Metaphysical 
 Principles of the Theory of Law," published in 
 1796, and deeply influenced by the writings of 
 Rousseau. 
 
 Kant begins his first treatise Avith the remark 
 that the contract by means of which a common- 
 wealth is formed differs from all other con- 
 tracts of association in this : that while the lat- 
 ter are m ule for various purposes, the former 
 is the only one which is its own object. The 
 object of the social compact is not the promo- 
 tion of the happiness of the contracting par- 
 ties, but merely the institution of a common- 
 wealth ; that is, the creation of a condition of 
 things in which the members are possessed of 
 legal rights, and he defines right, in his own 
 lucid way, as the limitation of the freedom of 
 each man on the condition that it is consistent 
 with the freedom of every other man, as far as 
 this is possible according to universal laws. 
 The foundations upo^i which alone a common- 
 wealth can be erected in accordance with the 
 pure rational principles of human rights are the 
 liberty, equality, and self-suiliciency of its mem- 
 bers. The last of these I shall explain later, 
 but the others require immediate attention.
 
 176 ESSAYS ON GOVERNMENT. 
 
 The purpose for which a commonwealth is in- 
 stituted being merely the creation of the rights 
 of its members, and not the direct promotion 
 of their happiness, no man can be compelled to 
 be happy in any particular manner, but each 
 man has a right to pursue his own happiness in 
 the way he thinks best, so long as he does not 
 interfere with the right of every other man to 
 do likewise in accordance with the universal 
 law. This is that liberty to which every mem- 
 ber of the community is entitled as a man, and 
 any attempt on the part of the government to 
 treat its subjects as children, and regulate their 
 happiness, is the worst possible despotism. 
 
 The equality of the members of the com- 
 munity follows naturally as a corollary from 
 their liberty, and may be expressed by saying 
 that each man has the same rights against 
 every other man, the sovereign only excepted, 
 that every other man has against him. Such 
 an equality is not inconsistent with the greatest 
 difference in property, and even in rank ; for it 
 is not necessary that the actual rights of every 
 man should be the same, but only that there 
 should be no legal barrier to prevent any man 
 from acquiring the property and rights, or ris- 
 ing to the position, enjoyed by another member 
 of the community. Kant declares, accordingly, 
 that rank and privilege cannot be hereditary,
 
 THE THEORY OF THE SOCIAL COMPACT. 177 
 
 but must be open to every person who, by his 
 talent, diligence, and good fortune, is capable 
 of attaining to them. 
 
 Now one would naturally suppose, after such 
 a discussion, that Kant regarded the right to 
 liberty and equality as in reality a right, and 
 that in his opinion an act of the sovereign 
 which violated this right would be unlawful, 
 and might be resisted by the subject. But so 
 far we have been considering only the immov- 
 able, without taking account of the irresistible, 
 and in this case it is the latter which carries 
 the day. For although Kant appears to base 
 his system upon an original contract, and, start- 
 ing from the premise that it is only to himself 
 that a man can do no wrong, declares that no 
 one can have power to legislate for a commu- 
 nity except by virtue of a fundamental law rest- 
 ing on the universal will of the people, so that 
 even the right of the majority to bind the mi- 
 nority can derive its force only from an orig- 
 inal contract agreed to by every one, yet he 
 regards the social compact not as the actual 
 foundation of law, but merely as a theory, 
 giving rise to certain principles to which laws 
 ought to conform. He goes so far as to con- 
 demn the, notion that any social contract was 
 actually made, on the ground that such a doc- 
 trine encourages the idea of popular sover-
 
 178 ESSAYS ON GOVERNMENT. 
 
 eignty, and gives rise to insurrection and rebel- 
 lion ; and while in one place he argues strongly 
 in favor of the right of free speech, he tells us 
 in another that, for practical purposes, the ori- 
 gin of the supreme power is unsearchable by 
 the people who are subjected to it, and that to 
 throw doubt upon it is a crime. 
 
 Kant does not, however, look on the social 
 compact as a mere idle theory, and the object 
 of one of his treatises appears to be to show its 
 practical importance ; not, indeed, in establish- 
 ing rights, but in furnishing a rule by which to 
 test the rectitude of laws. He states the test 
 in this way : If a law is so made that it is im- 
 possible that a whole people should give its 
 assent to it (a law conferring hereditary privi- 
 leges, for example), then the law is not just; 1 
 but if such an assent is merely possible, then 
 the law must be considered just. But this test 
 is useful only as a guide to the lawgiver, and is 
 not to be applied by the subjects, whose duty 
 it is in all cases to obey. If the sovereign de- 
 parts from the test, and even if he violates the 
 original contract, the subjects are not justified 
 
 1 It is impossible to render correctly the German word gerecJit, 
 which does not distinctly imply whether the act in question is 
 right from a legal or from a moral point of view. No doubt the 
 absence of words clearly distinguishing between moral and legal 
 right is partly caused by, and has helped to aggravate, the confu- 
 sion of the Germans upon this subject.
 
 THE THEORY OF THE SOCIAL COMPACT. 179 
 
 in resisting him : because, the sovereign being 
 by definition supreme in the state, there can 
 be no higher power to decide controversies be- 
 tween him and his subjects, or to enforce the 
 rights of the latter. It is only by submission 
 to his universal lawgiving will that a condition 
 in which legal rights exist is possible at all, and 
 to resist the sovereign is to bring about a state 
 of things where all right ceases, or at least 
 where it can no longer have any effect, and this 
 is in the highest degree unlawful. 
 
 If such assertions as these, Kant says, draw 
 upon him the reproach of flattering monarchs 
 to excess, he hopes that he may be spared the 
 accusation of too much favoring the people 
 when he maintains, in opposition to Hobbes, 
 that they retain certain indestructible rights 
 against the sovereign ; and he stigmatizes as 
 horrible Hobbes's doctrine that the sovereign 
 can do no injustice to the subject. But a closer 
 investigation shows that his own views do not 
 differ very much from those which he abhors, 
 except that he objects to calling a spade a spade, 
 and Hobbes does not; for these indestructible 
 rights which, by the way, only entitle the 
 subject to express his opinion in public affairs 
 and to make a statement of his grievances 
 are not enforceable (zicangsrechf), and depend 
 for their exercise entirely on the good will of 
 the sovereign.
 
 180 ESSAYS ON GOVERNMENT. 
 
 Kant discusses at some length the rightful 
 form of government, meaning by that, not the 
 form which alone can. rightfully command the 
 obedience of its subjects, but only the form of 
 a government constructed according to the pure 
 principles of right, and serving as a model 
 which all others ought gradually to be made 
 to resemble. He accepts the principle of the 
 separation of the legislative, executive, and 
 judicial powers, and claims that the first be- 
 longs exclusively to the people or their repre- 
 sentatives. It is in this connection that the 
 curious doctrine of the self-sufficiency of the 
 citizen, to which I have already referred, be- 
 comes of importance, for, in Ivant's opinion, all 
 the citizens are not capable of taking part in 
 legislation, but only those who are self-support- 
 ing and therefore independent ; and in this 
 category he does not mean to include all per- 
 sons who are supported by their own exertions, 
 but distinguishes between those who give their 
 labor for hire and those who bestow their 
 labor upon articles which they afterwards sell, 
 the former having no right to vote, while 
 the latter are in the fullest sense citizens. The 
 separation of powers does not afford, it appears, 
 a sufficient security to the citizen, and another 
 strange conclusion is drawn from the funda- 
 mental axiom that it is only to himself that a
 
 THE THEORY OF THE SOCIAL COMPACT. 181 
 
 man can do no wrong. Any person who is set 
 to judge may do an injustice, and the people 
 ought, therefore, to judge themselves by a jury 
 taken from among them, which decides nil mat- 
 ters of fact and leaves to the court the ques- 
 tions of law. This is a strange application of 
 Rousseau's fiction that every one in the state 
 is governed only by laws of his own making. 
 
 When Kant proceeds to discuss the criminal 
 law, the characteristic yearning of the German 
 mind seizes him with great violence, and, reject- 
 ing indignantly all motives of expediency, he 
 seeks an internal juristic necessity drawn from 
 the nature of the crime itself. He finds it in 
 the principle of equality, that one ought to in- 
 cline no more to one side than to another, and 
 says that whatever wrong you have done to an- 
 other you must do to yourself. It would take 
 too long to explain how, from this doctrine of 
 an eye for an eye and a tooth for a tooth, he 
 deduces the fact that imprisonment is the ap- 
 propriate punishment for theft, but it is obvious 
 that death is the proper retribution for murder. 
 So severe is he in the application of this in- 
 trinsic justice that he considers it a crime to 
 allow a murderer to live, and declares that if 
 a community determines, with the consent of 
 every member, to break up and disperse, the 
 last murderer in prison must be executed be-
 
 182 ESSAYS ON GOVERNMENT. 
 
 fore they do so, in order that the guilt of vio- 
 lating justice may not fall upon the people. 
 A friend of mine has suggested that if this 
 principle were so extended as to keep the com- 
 munity together until all the lesser criminals 
 in jail had served out their sentences, it would 
 probably have the desirable effect of prevent- 
 ing the community from breaking up at all. 
 
 The theory of the social compact appears to 
 have had a peculiar fascination for the German 
 mind, for it was taken up by Kant's successors, 
 and it is only quite recently that it has been 
 finally abandoned by them. 
 
 We have traced the history of this extraor- 
 dinary theory from the time of its first appear- 
 ance at the end of the sixteenth century, and 
 we have seen it used to support the most diver- 
 gent doctrines and the most conflicting opinions ; 
 for, like certain ingenious Yankee inventions, 
 it was cupaUle of being applied to almost any 
 service, although realty adapted to none. No 
 better example can be found of the fact so 
 strongly urged by Lecky that men are chiefly 
 persuaded, not by the logical force of argu- 
 ments, but by the disposition with which they 
 view them. We have seen the theory started 
 by a zealous churchman to uphold his church. 
 We have seen it wielded by Hobbes in favor 
 of absolute monarchy in England. We have
 
 THE THEORY OF THE SOCIAL COMPACT. 183 
 
 then seen it taken up by Locke as a shield to 
 individual right, and in defense of a limitation 
 of the power of government ; and later still by 
 Rousseau, as an argument for an unbridled de- 
 mocracy. We have seen its working here on 
 the Constitution of Massachusetts; and after 
 lighting the world for two centuries, we have 
 seen it give a last despairing flicker in the 
 courts of the United States, and fade away in 
 the dim light of German metaphysics. It now 
 remains for us to mark the causes of its rise 
 and fall. 
 
 To the Greeks and to those of the Romans 
 who looked at jurisprudence from a philosophic 
 point of view, law was merely a department of 
 morals ; and this explains the absence among 
 the ancients of any systematic attempt to dis- 
 cover a special basis for the obligation of legal 
 duties. 1 When tiie Teutonic race, on the other 
 hand, first appeared on the borders of the Ro- 
 man Empire, it was still in that early stage of 
 civilization in which the rightfulness of exist- 
 ing institutions is assumed without question; in 
 which it is enough that no one remembers a 
 time when things were otherwise, and custom 
 undisputed has the force of law. Under these 
 circumstances legislation is unknown, and the 
 
 1 In Plato's Republic, Book II., there is a reference to a crude 
 notion of an original compact.
 
 184 ESSAYS ON GOVERNMENT. 
 
 slow change which takes place in the laws is 
 brought about through the administration of 
 justice, and the exercise of those powers which 
 we should class to-day among the executive 
 functions of government. As political needs 
 developed during the course of the Middle 
 Ages, and were better understood, the idea of 
 legislation :is something distinct from adminis- 
 tration, and as an intentional change in the ex- 
 isting law, begins to appear, but the form which 
 it assumes is characteristic of the political views 
 of the day. The lawyers, deriving their ideas 
 from the writings of the Roman jurists, asserted 
 at quite an early period that the king was the 
 source of all legislative power; but underlying 
 this doctrine, and constantly cropping up, we 
 find the principle that any change in the law 
 requires the consent of those whom it con- 
 cerns. Such a claim was almost universal in 
 the matter of taxation, and even on questions 
 of general legislation it was constantly recur- 
 ring when a change was clearly seen to affect 
 anything more than the mere administration of 
 the law. Now it must be remembered that in 
 feudal times little or no distinction was made 
 between public and private rights. All rights, 
 beginning with that of the king to demand 
 from his vassal an aid to ransom him from cap- 
 tivity, and including that of the smallest land-
 
 THE THEORY OF THE SOCIAL COMPACT. 185 
 
 owner to exact a heriot on the death of his 
 tenant, were looked upon as private property. 
 Under these circumstances it is not strange 
 that an innovation in the law was thought to 
 require the consent of those whose property 
 was to be affected by it, whether it were the 
 grant of a " free aid," or a change in the estab- 
 lished custom of the realm, and this idea found 
 its most complete expression in the famous say- 
 ing of Edward I. : " That which toucheth all 
 shall be allowed of all." The conceptions of 
 the Middle Ages upon this subject, therefore, 
 were not of a character to excite political spec- 
 ulation, because the rightfulness of all property 
 was assumed without question, and of course 
 there could be no doubt of the right of every 
 man to dispose of his own. But when the 
 Renaissance gave a new impulse to thought, 
 and men began to distinguish more accurately 
 between public authority and private right, it 
 was unavoidable that they should investigate 
 the rightfulness of that authority, and inquire 
 into the origin of property. The question, 
 then, presented itself: Whence has a govern- 
 ment a right to compel a man to act against his 
 will, and what gives the binding force to law? 
 There was one obvious way to answer the ques- 
 tion, and that was to ascribe a divine origin to 
 government ; but this view of the matter, for
 
 186 ESSAYS ON GOVERNMENT. 
 
 reasons which I have already explained, be- 
 came monopolized by one school of political 
 thinkers, and consequently discredited among 
 those who did not agree with their tenets. 
 One other solution of the difficulty suggested 
 itself, and that was the consent of the person 
 interested ; for clearly a man cannot be wronged 
 by an act to which he has freely consented, and 
 what easier than to suppose a universal compact, 
 made at some remote period, by which every 
 one consented to the institution of a govern- 
 ment, and agreed to be bound by the laws 
 enacted by it? Such a compact appeared to 
 many men the only way of accounting for the 
 rightfulness of government, and its existence 
 was assumed without hesitation ; for, anarchists 
 being few in those times, every one was con- 
 strained to allow the lawfulness of some gov- 
 ernment or other, and when belief is indispen- 
 sable it is easy to believe. 
 
 In this way the theory of the social compact 
 met with a very general acceptance, and yet 
 it contained within itself the seeds of its own 
 destruction, because, if the theory were logically 
 carried out, each man, when he came of age, 
 ought to have a right, as Locke maintained, to 
 sever his connection with the body politic and 
 declare his freedom from its laws : but such a 
 doctrine, greatly impairing, as it must, the
 
 THE THEORY OF THE SOCIAL COMPACT. 187 
 
 effect of the theory, and giving a constant en- 
 couragement to lawlessness, could not be ad- 
 mitted for a moment. The theory, moreover, 
 rested on the assumption that a contract is in- 
 trinsically binding in a state of nature when 
 other rights do not exist ; but such an assump- 
 tion, although plausible, is clearly seen to be 
 false by any one who will take pains to think 
 about it. Spinoza and Leibnitz pointed this 
 out in the earlier days of the discussion, but 
 the tide \vas too strong to be stemmed at that 
 time. As a matter of history, indeed, it is well 
 known to students of the early forms of law 
 that the right to compel the performance of a 
 contract is not developed until long after the 
 right to property is well established. But un- 
 doubtedly the chief causes of the decline of the 
 theory were the change in the gpnei-al tone of 
 thought from speculative to positive, and the 
 complete absurdity of such a compact from an 
 historical point of view, an absurdity which 
 became more evident as a knowledge of semi- 
 barbarous races became more extensive. It 
 may well be doubted whether any one ever 
 believed that an actual compact of this kind 
 was made by people in a state of nature. 
 Imagine a crowd of half-naked savages grouped 
 around an ancient oak, while an old chief under 
 its boughs explains to them that they have
 
 188 ESSAYS ON GOVERNMENT. 
 
 readied the point when it is advisable to form 
 a civil body politic, and that it is proposed to 
 agree, among other things, that when they be- 
 come sufficiently civilized to understand the 
 meaning of king, lords, and commons, and to 
 appreciate the benefits of taxation, then the 
 king shall not have power to levy any tax with- 
 out the consent of the faithful commons. Im- 
 agine the savages clashing their spears and 
 shields in token of universal approval, and 
 breaking up with a further understanding, that 
 the sacredness of the social compact shall in- 
 stantly be made an article of the state religion.
 
 THE LIMITS OF SOVEEEIGNTY. 
 
 No man in this country is so high that he is above the law. No 
 officer of the law may set that law at defiance with impunity. All 
 the officers of the government, from the highest to the lowest, are 
 creatures of the law, and are bound to obey it. 
 
 It is the only supreme power in our system of government. Mr. 
 JUSTICE MILLKK, in United States t;. Lee, 106 U. S. 196. 
 
 AMONG the theories of jurists there is, per- 
 haps, none which has been a battle-ground for 
 so long a time as that which relates to the 
 limits of sovereign power. For two centuries 
 and a half the writers who maintained that 
 sovereignty is in its nature unlimited, and those 
 who contended that man is endowed with cer- 
 tain natural rights which the state cannot le- 
 gally invade, waged against each other a con- 
 tinual war ; the former, in England, being 
 found among the partisans of monarchy, the 
 latter in the ranks of those who favored the 
 popular cause. But now, just at the moment 
 when democracy is carrying everything before 
 it, and the advocates of the natural rights of 
 man appear to have triumphed, there has come
 
 190 ESSAYS ON GOVERNMENT. 
 
 a sudden change of base, and the victors, adopt- 
 ing the opinions of the vanquished, are almost 
 universally convinced that the authority of the 
 sovereign, from its very nature, can be subject 
 to no limitation or restraint. 
 
 This change is far from accidental, and may 
 be traced to two entirely distinct causes, of 
 which one has acted with great force upon the 
 mass of the community, while the other has 
 produced an effect even more striking upon the 
 minds of scholars. So long as the reins of gov- 
 ernment were in the hands of a king or an aris- 
 tocracy, it was natural that the advocates of 
 popular rights should seek to restrain his power; 
 but after the people had obtained control of the 
 state, it was not to be expected that they would 
 show the same respect for principles which fet- 
 tered the exercise of their own authority. The 
 ascendency of the popular party had, therefore, 
 an inevitable tendency to upset those doctrines 
 which were designed to limit the exercise of 
 power by others. Now it was during the 
 period when democracy was beginning to assert 
 its power, that Bent ham's treatise on legisla- 
 tion, 1 and Austin's work on jurisprudence, at- 
 
 l Bentham, as will be seen in ihe following pages, far from 
 teaching the doctrine that the power of the sovereign is unlimited, 
 distinctly repudiated it, and yet there can be no doubt that his 
 principles, by undermining the old notion of natural rights, mate- 
 rially helped to establish that doctrine.
 
 THE LIMITS OF SOVEREIGNTY. 191 
 
 tracted the serious attention of scholars : the first 
 of these writers proclaiming the greatest happi- 
 ness of the greatest number as the sole and final 
 test of legislation ; while the second developed, 
 in a new form, the doctrine that sovereignty is 
 essentially incapable of limitation, and by the 
 clearness and force of his logic, obtained a mas- 
 tery over the legal thought of English-speaking 
 people, which has never been equaled in the 
 history of the race. The despotic nature of 
 absolute democracy has helped to make Austin's 
 views upon sovereignty prevail ; but this alone 
 would not account for the force with which his 
 theories have stamped themselves upon all sub- 
 sequent legal speculation ; and the many criti- 
 cisms upon this work, however correct some of 
 them may have been, have served to bring into 
 brighter light the extraordinary power of his 
 intellect. 
 
 At first sight, Austin's doctrine appears to 
 involve merely an abstract question, or intel- 
 lectual problem, which has no real bearing on 
 actual government; but this is far from true, 
 for although as understood by its author it is 
 harmless, even if erroneous, yet when applied 
 to politics, it is liable to be very much abused, 
 and to become the source of evils which were 
 by no means contemplated by him. In the 
 first place, the doctrine that sovereign power is
 
 192 ESSAYS ON GOVERNMENT. 
 
 unlimited leads almost unavoidably to the opin- 
 ion that it is proper to use that power without 
 restraint, because the great mass of the peo- 
 ple cannot distinguish between the legal and 
 moral aspects of politics, and are very apt to 
 conclude that if the state has a legal right to do 
 a certain act, it is under no moral obligation to 
 refrain from doing it. There is a danger, in 
 the second place, that the people will confound 
 sovereignty with legislative power, and attrib- 
 ute the former to any body which possesses the 
 latter. If they are taught that the power of 
 the sovereign is absolute, they ai - e likely to be- 
 lieve that the legislature ought to, and in fact 
 does, have authority to pass laws without re- 
 straint, a notion which would undermine the 
 very foundations of our whole political system. 
 It is for these reasons that the doctrine ad- 
 vanced by Austin is of real practical impor- 
 tance, and not a mere matter for intellectual 
 speculation ; but in considering the subject I 
 shall assume the liberty, 'so rarely allowed at 
 the present day, of treating the theory from a 
 purely abstract stand-point, without inquiring 
 in what body or bodies sovereignty is actu- 
 ally lodged in the United States, or whether 
 those bodies (be they States severally, States 
 in union, or people of the nation) are possessed 
 of absolute power or not.
 
 THE LIMITS OF SOVEREIGNTY. 193 
 
 The writers of that great school which main- 
 tained the possibility of limitations upon the 
 authority of government, based their theories 
 upon what they styled the natural rights of 
 man. Man, they said, is endowed by nature 
 with certain legal rights which he cannot, or at 
 least which he never did, surrender, and these 
 rights, derived as they are from a higher source 
 than civil government, cannot be abridged or 
 destroyed by legislation. Such a tenet of man's 
 natural rights was long accepted as an axiom 
 by the great bulk of Englishmen, and it is due 
 to Austin more than to any one else, with the 
 possible exception of Bentham, that within the 
 last half century the idea has fallen into dis- 
 credit, and been abandoned by almost every 
 scholar in England and America. Austin's 
 teachings on this subject were not altogether 
 original with him, but were derived from 
 Hobbes, whose writings, except when occasion- 
 ally mentioned with a shudder, slept unnoticed 
 for two hundred years until brought into prom- 
 inence again by his great disciple. Hobbes 
 seems to have been the first man who under- 
 stood the difference between legal and moral 
 obligations ; who saw that legal rights depend 
 for their existence upon positive law, and that 
 positive law is an artificial creation made by 
 men. In this view he was followed by Austin,
 
 194 ESSAYS ON GOVERNMENT. 
 
 who transformed the crude ideas of his master 
 into a complete philosophical system. 
 
 Austin's definition of law may be briefly 
 stated as follows : A law is a command, coupled 
 with a sanction, given by a political superior 
 or sovereign to a political inferior or subject. 
 So far as statute law is concerned, this defini- 
 tion is undoubtedly correct, for a statute is 
 clearly a command issued by the legislature ; 
 but the customary law presents at once a diffi- 
 culty, and of this Austin says (Lecture I. p. 23, 
 2d ed.) : 
 
 " Now when judges transmute a custom into 
 a legal rule (or make a legal rule not suggested 
 by a custom), the legal rule which they estab- 
 lish is established by the sovereign legislature. 
 A subordinate or subject judge is merely a 
 minister. The portion of the sovereign power 
 which lies at his disposition is merely delegated. 
 The rules which he makes derive their legal 
 force from authority given by the State : an 
 authority which the State may confer expressly, 
 but which it commonly imparts by way of ac- 
 quiescence. For, since the State may reverse 
 the rules which he makes, and yet permits him 
 to enforce them by the power of the political 
 community, its sovereign will ' that his rules 
 shall obtain as law' is clearly evinced by its 
 conduct, though not by its express declaration."
 
 THE LIMITS OF SOVEREIGNTY. 195 
 
 " Like other significations of desire, a com- 
 mand is express or tacit. If the desire be sig- 
 nified by words (written or spoken), the com- 
 mand is express. If the desire be signified by 
 conduct (or by any signs of desire which are 
 not words), the command is tacit." 
 
 " Now when customs are turned into legal 
 rules by decisions of subject judges, the legal 
 rules which emerge from the customs are tacit 
 commands of the sovereign legislature. The 
 State, which is able to abolish, permits its min- 
 isters to enforce them : and it, therefore, signi- 
 fies its pleasure, by that its voluntary acquies- 
 cence, * that they shall serve as a law to the 
 governed.' " 
 
 The reasoning here presented rests, it will 
 be noticed, entirely on the statement that the 
 sovereign legislature has power to abolish the 
 customary law ; but this assertion, while very 
 nearly accurate in the present state of political 
 development, is by no means universally true. 
 In most of the civilized countries of the world, 
 perhaps in all of them, there exists to-day a 
 legislative body which possesses such a power ; 
 but this has not always been the case, for it 
 is well known to students of early forms of 
 law that the legislative function develops much 
 later than the administrative or the judicial, 
 ;md that law attains a considerable degree of
 
 196 ESSAYS ON GOVERNMENT. 
 
 perfection before a distinct idea of legislation 
 makes its appearance. The practice of creat- 
 ing law shows itself at first modestly and tim- 
 idly, and attempting to conceal its real nature, 
 assumes the form of declaring existing rules or 
 regulating the methods of procedure, and not 
 that of deliberate innovation. For a long time 
 custom is far more potent as a source of law 
 than legislation, and it is only by very slow 
 degrees that the latter acquires the predomi- 
 nance. A certain class of laws, indeed, those 
 which relate to the fundamental institutions of 
 government, were not drawn completely within 
 the sphere of legislation until very recent 
 times. Louis XIV. was the sole possessor 
 of political power and absolute sovereign in 
 France ; but an attempt on his part to make 
 Madame de Main ten on his successor on the 
 throne would undoubtedly not have been con- 
 sidered by the bulk of his subjects as impair- 
 ing his heir's right to the crown ; and although 
 in some countries the royal succession was de- 
 liberately altered, yet the power of changing 
 the constitution of government cannot be said 
 to have developed fully in modern Europe be- 
 fore the outbreak of the French Revolution. In 
 the early stages of civilization the power of any 
 man or body of men to interfere with customary 
 law is extremely limited, and the persons by
 
 THE LIMITS OF SOVEREIGNTY. 197 
 
 whom justice is administered are not in fact, or 
 in public estimation, the ministers of any legis- 
 lative body, nor are they under its control. It 
 is only by the purest of fictions that custom- 
 ary law under these circumstances can be said 
 to exist by virtue of the will of such a body, or 
 to be established by its commands. 
 
 It is clear, therefore, that Austin's definition 
 of law, although nearly accurate at the present 
 day, is incorrect when applied to primitive so- 
 cieties, or even to those which have reached a 
 considerable degree of civilization. The defi- 
 nition, in short, is not true of law in general, 
 and this is important when we come to con- 
 sider the nature of sovereignty, because Austin's 
 proof that sovereign power can have no limits 
 is based entirely, as we shall see, upon the 
 proposition that all law is the command of a 
 political superior. If this proposition is not 
 universally true, his proof, even if otherwise 
 unimpeachable, will apply only to those states 
 in which it can be shown as a fact that all law 
 derives its force from such a command ; and 
 in these states it will not demonstrate that the 
 power of the sovereign is incapable of limita- 
 tion, but merely that it is not actually limited 
 at the time when the fact in question is found 
 to exist. 
 
 We now come to the great argument de-
 
 198 ESSAYS ON GOVERNMENT. 
 
 signed to prove that sovereign power cannot 
 be limited. It is as follows (Lect. VI. p. 225, 
 2d ed.) : - 
 
 "Every positive law, or every law simply and 
 strictly so called, is set, directly or circuitously, 
 by a sovereign person or body, to a member 
 or members of the independent political society 
 wherein that person or body is sovereign or 
 supreme. Or (changing the expression) it is 
 set, directly or circuitously, by a monarch or 
 sovereign number, to a person or persons in a 
 state of subjection to its author." 
 
 " Now, it follows from the essential differ- 
 ence of a positive law, and from the nature of 
 sovereignty and independent political society, 
 that the power of a monarch properly so called, 
 or the power of a sovereign number in its colle- 
 giate and sovereign capacity, is incapable of 
 legal limitation. A monarch or sovereign num- 
 ber, bound by a legal duty, were subject to a 
 higher or superior sovereign : that is to say, 
 a monarch or sovereign number bound by a 
 legal duty, were sovereign and not sovereign. 
 Supreme power limited by positive law is a flat 
 contradiction in terms." 
 
 " Nor would a political society escape from 
 legal despotism, although the power of the sov- 
 ereign were bounded by legal restraints. The 
 power of the superior sovereign immediately
 
 THK LIMITS OF SOVEREIGNTY. 199 
 
 imposing the restraints, or the power of some 
 other sovereign superior to that superior, would 
 still be absolutely free from the fetters of posi- 
 tive law. For unless the imagined restraints 
 
 o 
 
 were ultimately imposed by a sovereign not in 
 a state of subjection to a higher or superior sov- 
 ereign, a series of sovereigns ascending to in- 
 finity would govern the imagined community. 
 Which is impossible and absurd." 
 
 This argument depends for its force, as I 
 have said, upon the proposition that all law is 
 the command of a definite political superior, 
 since it is based upon the assumption that legal 
 restraints can be imposed only by means of such 
 a command. Let us compare this passage with 
 the one already quoted from Austin, in which 
 he tries to prove that customary law derives 
 its authority from a command of the sovereign. 
 The argument there used is, shortly, as fol- 
 lows : The sovereign has power to abolish the 
 customary law; by refraining from so doing he 
 declares his pleasure that it shall continue in 
 force ; hence it owes its existence to an ex- 
 pression of his will, and may properly be said 
 to result from his command. The whole of 
 this reasoning rests upon the premise that the 
 sovereign has power to abolish the customary 
 law, and the truth of that premise might be 
 demonstrated bv either one of two methods. It
 
 200 ESSAYS ON GOVERNMENT. 
 
 might, in the first place, be proved inductively; 
 that is, by examining all known systems of law, 
 and showing that in each of them the sovereign 
 had the power claimed for him, a result 
 which would establish a probability more or 
 less strong that the power in question was uni- 
 versal. Such an examination, however, not 
 only fails to establish the premise in this case, 
 but actually disproves it, because, as has been 
 already pointed out, there are known systems 
 of law in which the sovereign does not possess 
 the power in question. The premise might, on 
 the other hand, be proved deductively, that is, 
 by showing that it followed as a logical conclu- 
 sion from some other premise or proposition 
 admitted to be sound. Now, the proposition 
 that the power of the sovereign can have no 
 limits will appear on a little reflection to be 
 the only one available for this purpose, and, in- 
 asmuch as Austin makes no attempt to exam- 
 ine all known systems of law, it \vould seem at 
 first sight that the process of thought in his 
 mind involved a deductive reasoning from that 
 proposition as a premise. But if we state the 
 proof that customary law is the command of 
 the sovereign in this form, and compare it with 
 the proof that sovereign power can have no 
 limit, we shall see at once a flaw in the logic. 
 These arguments, taken together, are as fol-
 
 THE LIMITS OF SOVEREIGNTY. 201 
 
 lows : The power of the sovereign can have no 
 limits ; he has, therefore, power to abolish the 
 customary law ; hence, all law is the command 
 of the sovereign ; and from this it follows that 
 his power can have no limits. The reasoning 
 in a circle here is only too evident, and it is 
 impossible that a man of Austin's logical acute- 
 ness should have been guilty of so palpable an 
 error. The fact is that Austin simply assumed 
 the power of the sovereign to abolish customary 
 law. He did not attempt to prove it deduc- 
 tively, nor did he make an examination of all 
 known systems of law, but his attention having 
 been directed only to highly developed societies, 
 he thought the proposition sufficiently obvious 
 to be accepted without question. It is prob- 
 able, however, that many of his readers have 
 been misled into supposing the proposition es- 
 tablished deductively, and that they have un- 
 consciously gone through in their own minds 
 the reasoning in a circle already described; 
 a mistake which is the more natural because 
 the two arguments are separated in Austin's 
 book by two hundred pages, and one of them 
 might easily be forgotten before the other was 
 reached. 
 
 I have so far attacked Austin's demonstration 
 that the power of the sovereign can have no 
 limit, by trying to prove his premise that law is
 
 202 ESSAYS ON GOVERNMENT. 
 
 a command untrue as a general proposition, and 
 by showing that the process by which that 
 premise is often supposed to be established in- 
 volves a reasoning in a circle. But these do 
 not exhaust all the possible objections to his 
 position, and for the purpose of discussing his 
 arguments further I shall leave out of sight the 
 criticisms already made, and suppose the propo- 
 sition that all law is the command of a definite 
 political superior to have been satisfactorily 
 proved. From this it follows that no law can 
 exist except by virtue of such a command ; but 
 is it therefore true that every command of a 
 political superior, or of the ultimate superior 
 termed the sovereign, is a law? That is the 
 point which Austin seeks to prove ; because if 
 there are, or may be, commands of this sort 
 which are not laws ; if, in other words, the 
 sovereign is for any reason unable, by issuing 
 a command, to make a law in accordance with 
 his will ; then his legislative power is limited 
 by just the extent of that inability. Starting 
 with the proposition which, for the purpose of 
 this part of the discussion, I have admitted, 
 Austin very properly draws the conclusion 
 that a sovereign, being, by definition, subject 
 to no political superior, cannot be bound by 
 any commands issued by such a superior, and 
 cannot, therefore, be bound by any laws, or be
 
 THE LIMITS OF SOVEREIGNTY. 203 
 
 subject to any legal restraints whatever. From 
 this it is clear that no act of the sovereign can 
 be a violation of any legal duty, or give rise to 
 any legal claim against him, or render him lia- 
 ble to punishment. It is clear, in short, that 
 he can do no legal wrong. It is also clear that 
 no law can declare his commands invalid, or 
 deprive them of any legal force they would 
 otherwise possess ; but it does not follow that 
 all his acts are v;ilid and effectual, or that all 
 his commands are laws. These are two very 
 different things, and the former by no means 
 implies the latter, but may very well exist 
 without it. The Queen of England, although 
 not a sovereign in the sense in which we are 
 using the word, is in fact free from legal re- 
 straint. She can do no legal wrong. She can- 
 not be sued or prosecuted for any act which she 
 may commit. But her commands are not laws, 
 and this is not because her power of legislation 
 is restrained by the orders of a political supe- 
 rior, but simply because she possesses no legis- 
 lative power at all. Here, then, we have the 
 case of a member of a political society enjoy- 
 ing absolute freedom from legal restraint, with- 
 out any corresponding authority to make laws. 
 Let us take another illustration. It was at 
 one time asserted by the English judges that 
 Parliament had not unlimited power; that it
 
 204 ESSAYS ON GOVERNMENT. 
 
 could not, for example, make a man a judge in 
 his own case. 1 Now, suppose that this doctrine 
 had prevailed, and that both the judges and the 
 community at large had been universally in the 
 habit of disregarding statutes which conflicted 
 with the principle I have mentioned. It is 
 evident that Parliament in such a case would 
 possess only a limited power of legislation, and 
 yet would be bound by no legal duties, and sub- 
 ject to no legal restraints. The act of the Par- 
 liament in passing a statute of this kind would 
 not involve that body or its members in any lia- 
 bility to punishment, and, according to Austin's 
 own definition, its act would not be a breach of 
 any duty imposed by law, because no legal 
 duty can exist without a sanction. The con- 
 duct of the legislature, in other words, would 
 not be illegal, but simply ineffectual. Parlia- 
 ment, therefore, would be subject to no legal 
 duty, and yet would possess only a limited au- 
 thority. In such a case it is evident not only 
 that Parliament would be guilty of no breach 
 of a legal obligation, but also that the valid- 
 ity of its commands would not in any way be 
 limited by the command of a political superior. 
 The result we have imagined could, of course, 
 be produced by means of a law, set by a polit- 
 ical superior, which declared the objectionable 
 
 i See page 170.
 
 TEE LIMITS OF SOVEREIGNTY. 205 
 
 statutes invalid ; but Austin makes no attempt 
 to prove that it could not also be brought about 
 without the intervention of such a law, and, in 
 the case supposed, it would be clear that neither 
 the judges, nor any definite political superior, 
 issued commands to this effect, and that the 
 statutes were not disregarded, on the ground 
 that they conflicted with any such commands. 
 To assume that because the legislative power of 
 the sovereign is not limited by law, it is there- 
 fore without limit, is to take for granted one of 
 the very points to be proved, and a point, more- 
 over, which is far from self-evident. It is like 
 assuming that, because the soil of Great Britain 
 is not bounded by that of any other country, it 
 is unlimited in extent. 
 
 It will perhaps occur to some one that, if all 
 law is the voluntary command of the sovereign 
 and the expression of his will (a proposition 
 which, for the purpose of this part of the discus- 
 sion, I have admitted), then through a change 
 of that will any part of the law may cease to 
 operate, and any right, being but the creature 
 of law, may be taken away. It may seem, in 
 short, that the sovereign, merely by revoking 
 his own commands, can bring about any con- 
 ceivable variation in that vast net -work of 
 rights and duties which forms the substance 
 of the law. But this is not the case, because,
 
 206 ESSAYS ON GOVERNMENT. 
 
 although it is true that a volition which can be 
 exercised only in one way is no volition at all, 
 and that law cannot be said to exist by the will 
 of the sovereign if he has no real option in the 
 matter, yet it is equally true that the power of 
 willing need not be unlimited in order that an 
 act may be voluntary. It is enough that there 
 exists a choice, although that choice does not 
 extend to an infinite variety of objects. In 
 order that the act of the sovereign in making 
 a law should be voluntary, it is only essential 
 that he should have the option of making the 
 law or not, or that he should have a choice be- 
 tween two or more possible laws. It is not nec- 
 essary that he should be able to establish any 
 conceivable combination of rights and duties." 
 To maintain the contrary would be like assert- 
 ing that my motions are not voluntary because 
 I cannot bend my joints the wrong way, or that 
 my house does not stand during my pleasure, 
 because I cannot tear down the lower story and 
 leave the upper ones undisturbed. Hence it is 
 clear that even if all law is based upon the will 
 of the sovereign, there may be combinations 
 of rules which he cannot make, and it follows 
 that there may be rights which he cannot take 
 away ; at least if we leave out of account his 
 power to revoke all his commands at once, and 
 introduce a general state of anarchy, an act
 
 THE LIMITS OF SOVEREIGNTY. 207 
 
 which would be virtually equivalent to an abdi- 
 cation. 
 
 Up to this point we have been examining 
 Austin's proof that the power of the sovereign 
 can have no limit, and I have tried to show 
 that the argument is based upon an errone- 
 ous premise, and that even if the premise were 
 sound the conclusion would not follow. Let us 
 now study his definition of a sovereign, and 
 see what inferences can be drawn from it. " If 
 a determinate human superior," he says (Lect. 
 VI. p. 170, 2d ed.), " not in a habit of obedi- 
 ence to a like superior, receive habitual obe- 
 dience from the bulk of a given society, that 
 determinate superior is sovereign in that soci- 
 ety, and the society (including the superior) is 
 a society political and independent." Suppose 
 that the members of a society are in the habit 
 of obeying all those commands issued by the 
 
 JO J 
 
 sovereign which relate to a certain class of mat- 
 ters, but are at the same time in the habit of 
 disobeying all his commands affecting another 
 class of matters. Suppose, for example, that 
 tliey are in the habit of obeying all commands 
 relating to secular concerns, while in the habit 
 of disregarding entirely all commands touch- 
 ing religion. In such a case it is absurd to s;iy 
 that there is no government, and that the con- 
 dition of the society is one of mere anarchy ;
 
 208 ESSAYS ON GOVERNMENT. 
 
 but it is also impossible to hold that the legis- 
 lative power of the sovereign is unlimited, be- 
 cause those of his commands which are disre- 
 garded by his subjects, and which he has no 
 power to enforce, amount only to ineffectual ex- 
 pressions of desire on his part, and by a misuse 
 of terms alone can be called laws, or be said to 
 be included within the limits of his legislative 
 power. Sovereignty depends upon the habitual 
 obedience of the society, and it is hard to see 
 how it can extend farther than the habit upon 
 which it rests. If, therefore, the society is not 
 in the habit of obeying commands which relate 
 to certain matters, the sovereignty of the person 
 who issues them does not cover those matters, 
 and the commands in question are not laws. 
 The case we have supposed is extremely un- 
 likely to occur, because a sovereign who found 
 that a certain class of his commands were ha- 
 bitually disobeyed would, in all probability, 
 either desist from issuing them, or attempt to 
 enforce them, and thereby provoke a conflict 
 likely to result in his success or his overthrow. 
 Let us take a less improbable case. Let us 
 suppose that the commands of a sovereign 
 which concern one class of affairs are habitu- 
 ally obeyed, but that he refrains from issuing 
 any commands touching another class of affairs 
 because he knows that they would certainly be
 
 THE LIMITS OF SOVEREIGNTY. 209 
 
 disobeyed. This case is evidently parallel to 
 the last one, for, so long as the habit of obe- 
 dience does not extend to commands dealing 
 with certain matters, it can make no difference 
 whether such commands are issued and dis- 
 obeyed, or whether they are not issued for fear 
 of disobedience. It would seem, therefore, that 
 the limit of sovereign power depends upon the 
 limit of habitual obedience ; that every com- 
 mand of a political superior, or (if we reject the 
 proposition that all laws are commands) every 
 rule of conduct, which is obeyed by the bulk of 
 a given society, is a law, provided it is coupled 
 with a sanction appropriate to law in the state 
 of civilization which that society has reached ; 
 and that, conversely, no command or rule of 
 conduct is a law if it does not receive the obe- 
 dience of the bulk of the society. 1 
 
 This test can readily be applied to existing 
 enactments, but it is not always easy to proph- 
 esy whether a command of a new and unpre- 
 cedented character would be obeyed or not. 
 Inasmuch, however, as the bulk of every so- 
 ciety, except in cases of severe social convul- 
 
 1 It may be supposed that, according to tliis principle, the stat- 
 utes forbidding the sale of liquor in some of our States are not 
 laws, but that would be going too far, because these acts are by 
 no means disregarded. Persons violating them may perhaps be 
 rarely prosecuted, but the law is strictly enforced by the courts 
 whenever a case is brought before them.
 
 210 ESSAYS ON GOVERNMENT. 
 
 sion, is, from one motive or another, in the 
 habit of obeying what it regards as the law, 
 and is not in the habit of obeying rules which 
 it does not consider law unless they are agreea- 
 ble, it is sufficiently accurate to say that if the 
 bulk of a society consider that a certain com- 
 mand, if issued by the sovereign, would not be 
 a law, and if they are not disposed to obey it, 
 then such a command would not be a law, and 
 does not lie within the legislative power of the 
 sovereign. The extent, in other words, of sov- 
 ereign power, is measured by the habit, the 
 opinion, and the disposition of the bulk of the 
 society. 
 
 Bentham appears to have held this view of 
 the limitation of sovereignty, although, from 
 some expressions which come after the passage 
 here quoted, it is doubtful whether he distin- 
 guished clearly the position of the sovereign 
 from that of a subordinate legislative body. 
 The following extract is from the " Fragment 
 on Government," Chapter IV. : 
 
 " XXXIV. Let us now go back a little. In 
 denying the existence of any assignable bounds 
 to the supreme power, I added, ' unless where 
 limited by express convention : ' for this excep- 
 tion I could not but subjoin. Our author 
 (BlacJcstone~), indeed, in that passage in which, 
 short as it is, he is most explicit, leaves, we
 
 THE LIMITS OF SOVEREIGNTY. 211 
 
 may observe, no room for it. ' However they 
 began,' says he (speaking of the several forms 
 of government) ' however they began, and 
 by what right soever they subsist, there is and 
 must be in ALL of them an authority that is 
 absolute. . . .' To say this, however, of all 
 governments without exception ; to say that 
 no assemblage of men can subsist in a state of 
 government, without being subject to some one 
 body whose authority stands unlimited so much 
 as by convention ; to say, in short, that not 
 even by convention can any limitation be made 
 to the power of that body in a state which in 
 other respects is supreme, would be saying, I 
 take it, rather too much : it would be saying 
 that there is no such thing as government in 
 the German Empire ; nor in the Dutch Prov- 
 inces ; nor in the Swiss Cantons ; nor was of 
 old in the Achaean League. 
 
 "XXXV. In this mode of limitation I see 
 not what there is that need surprise us. By 
 what is it that any degree of power (meaning 
 political poiver) is established? It is neither 
 more nor less, as we have already had occasion 
 to observe, than a habit of, and disposition to, 
 obedience : Jtabit, speaking with respect to past 
 nets; disposition, with respect to future. This 
 disposition it is as easy, or I am much mis- 
 taken, to conceive as being absent with regard
 
 212 ESSAYS ON GOVERNMENT. 
 
 to one sort of acts, as present with regard to 
 another. For a body, then, which is in other 
 respects supreme, to be conceived as being 
 with respect to a certain sort of acts limited, all 
 that is necessary is, that this sort of acts be in 
 its description distinguishable from every other. 
 " XXXVI. By means of a convention, then, 
 we are furnished with that common signal 
 which, in other cases, we despaired of finding. 
 A certain act is in the instrument of conven- 
 tion specified, with respect to which the gov- 
 ernment is therein precluded from issuing a 
 law to a certain effect : whether to the effect of 
 commanding the act, of permitting it, or of for- 
 bidding it. A law is issued to that effect not- 
 withstanding. The issuing, then, of such a law 
 (the sense of it, and likewise the sense of that 
 part of the convention which provides against 
 it being supposed clear) is a fact notorious and 
 visible to all : in the issuing, then, of such a 
 law, we have a fact which is capable of being 
 taken for that common signal we have been 
 speaking of. These bounds the supreme body 
 in question has marked out to its authority : of 
 such a demarcation, then, what is the effect ? 
 Either none at all, or this : that the disposition 
 to obedience confines itself within these bounds. 
 Beyond them the disposition is stopped from 
 extending: beyond them the subject is no
 
 THE LIMITS OF SOVEREIGNTY. 213 
 
 more prepared to obey the governing body of 
 his own state, than that of any other. What 
 difficulty, I say, there should be in conceiving 
 a state of things to subsist in which the supreme 
 authority is thus limited, what greater diffi- 
 culty in conceiving it with this limitation, than 
 without any, I cannot see. The two states are, I 
 must confess, to me alike conceivable : whether 
 alike expedient, alike conducive to the hap- 
 piness of the people, is another question." 
 
 It is worth while to notice here a difficulty 
 which Austin encounters when he tries to ex- 
 plain the position of a person who is at the 
 same time sovereign in one independent polit- 
 ical society and subject in another. " Suppos- 
 ing, for example," he says (Lect. VI. p. 216, 
 2d ed.), " that our own king were monarch 
 and autocrator in Hanover, how would his sub- 
 jection to the sovereign body of king, lords, and 
 commons, consist with his sovereignty in his 
 German kingdom ? A limb or member of a 
 sovereign body would seem to be shorn, by its 
 habitual obedience to the body, of the habitual 
 independence which must needs belong to it as 
 sovereign in a foreign community. To explain 
 the difficulty, we must assume that the char- 
 acters of sovereign, and member of the sover- 
 eign body, are practically distinct: that, as 
 monarch (for instance) of the foreign comrnu-
 
 214 ESSAYS ON GOVERNMENT. 
 
 nity, a member of the sovereign body neither 
 habitually obeys it, nor is habitually obeyed by 
 it." But a sovereign possessed of strictly un- 
 limited power can issue to his subject any com- 
 mands he may please, and inflict punishment 
 in case of disobedience. The sovereign of Eng- 
 land, for example, may command his subject, 
 the sovereign of Hanover, under pain of death, 
 to collect taxes in his German dominions and 
 remit them to England. In his attempt to 
 avoid this conclusion Austin concedes the very 
 point at issue, and seems virtually to adopt the 
 theory of sovereignty which has been suggested 
 in the preceding pages ; for, by distinguishing 
 between the acts which the king of Hanover 
 performs as subject of England, and those 
 which he performs as sovereign of a foreign 
 country, and saying that the legislative power 
 of England covers only the former, he admits 
 that the British sovereign may have power to 
 issue commands which relate to one class of 
 acts, and at the same time may not have power 
 to issue commands which relate to another. 
 This is nothing less than an admission that the 
 power of the sovereign is not always unlim- 
 ited. He declares, moreover, that the question 
 whether the legislative power of England ex- 
 tends to the acts of its subject performed as 
 sovereign of Hanover is determined by the
 
 THE LIMITS OF SOVEREIGNTY. 215 
 
 habitual obedience of the subject in that capac- 
 ity. He considers, therefore, that in this case 
 at least, the extent of the sovereign's power is 
 measured by the habitual obedience of the sub- 
 ject. The same or a similar difficulty is in- 
 volved in Austin's statement (Lect. VI. p. 323, 
 2d ed.), that a person may be at the same time 
 completely a member of one independent polit- 
 ical society, and for certain limited purposes a 
 member of another ; but he makes no attempt 
 to solve it. 
 
 If the extent of sovereign power is measured 
 by the disposition to obedience on the part of 
 the bulk of the society, it may be said that the 
 power of no sovereign can be strictly unlimited, 
 because commands can be imagined which no 
 society would be disposed to obey. This may 
 very well be true, and perhaps it would be 
 proper to classify sovereigns, not according as 
 their authority is absolute pr not, but according 
 as it is indefinite, or restrained within bounds 
 more or less definitely fixed ; for unless the 
 limits of power are tolerably well determined, 
 they tend to stretch farther and farther. Defi- 
 nite limits may be set to sovereign power in 
 either one of two ways : they may result from 
 the rivalry of two independent rulers, who 
 settle by negotiation questions concerning the 
 boundaries of their respective jurisdictions, and
 
 216 ESSAYS ON GOVERNMENT. 
 
 quarrel when they cannot agree ; or they may 
 be established by some formal declaration, 
 which by sufficient precision enables the bulk 
 of the society to have a general opinion about 
 the extent of legislative authority, and to dis- 
 tinguish between those commands which fall 
 within the boundaries prescribed and those 
 which do not. 
 
 Let us consider the first of these cases. If 
 the sovereign's power to make laws can be 
 limited to a certain class of affairs, it is clear 
 that other matters not within these limits may 
 form the sphere of action of another sovereign, 
 and thus two sovereigns may issue commands 
 to the same subjects, each being supreme in 
 his own department. It may not be always 
 easy in such cases to define accurately the 
 boundaries of each ruler's authority ; but this 
 difficulty, which arises from the impossibility 
 of an exact classification of all human actions, 
 is constantly met with in applying the law, and 
 does not affect the proposition that two sov- 
 ereigns with different spheres of activity may 
 govern the same subjects. The relation of 
 the Church to the various temporal rulers in 
 Europe has been, at times, of the character here 
 described. 
 
 The possibility of what I may call a dual 
 sovereignty in one political society suggests an
 
 THE LIMITS OF SOVEREIGNTY. 217 
 
 inquiry into the connection between the terms 
 " sovereign " and " nation." The former is the 
 name given to an independent political superior, 
 considered in relation to his subjects. The 
 latter is applied to the society composed of the 
 superior and the subjects, considered in rela- 
 tion to other independent political societies. 
 Now it is often assumed that these two concep- 
 tions are inseparable; that every nation must 
 have one and only one sovereign, and that every 
 sovereign together with his subjects, must con- 
 stitute a nation : but I think that this is a mis- 
 take, because, if as I have urged there can 
 exist within the same territory two sovereigns, 
 issuing commands to the same subjects touch- 
 ing different matters, it may very well happen 
 that one of them has no relations with other in- 
 dependent political societies. It may happen 
 that the authority of a sovereign, in respect to 
 the matters within his competence, extends over 
 several communities, each of which is subject 
 in other matters to an independent political 
 superior of its own, while all the relations with 
 foreign powers fall within the competence of 
 the central government ; and in this case the 
 lesser political bodies, although strictly sover- 
 eign, could not properly be called nations. I 
 do not assert that this is true of the United 
 States, but merely that there is nothing illog-
 
 218 ESSAYS ON GOVERNMENT. 
 
 ical or impossible in such a state of things, 
 because the proposition that a nation can have 
 only one sovereign, and that every sovereign 
 together with his subjects must constitute a 
 nation, depends upon the hypothesis that the 
 authority of a sovereign is necessarily unlimited, 
 and with that hypothesis it must stand or fall. 
 
 The second method in which the limits of 
 sovereign power may be definitely fixed is, by 
 means of a declaration, sufficiently precise to 
 enable the members of the society to distin- 
 guish between those commands which fall 
 within the authority of the sovereign and 
 those which do not. Such a declaration can 
 be made in various ways, and in order that it 
 may have the effect proposed, it is only neces- 
 sary that the bulk of the community should 
 consider all commands issued in excess of the 
 authority set forth invalid, and should not be 
 disposed to obey them. It can be made by 
 means of a convention or compact, as Bentham 
 suggests; or without any compact, by the sov- 
 ereign himself ; by an assembly of citizens 
 when changing the form of government ; or 
 by several independent communities when unit- 
 ing to create a new nation. It is, in fact, con- 
 ceivable that it might be made without any 
 written instrument at all, by a process of grad- 
 ual evolution, although such a state of things
 
 THE LIMITS OF SOVEREIGNTY. 219 
 
 is not very likely to occur, and probably would 
 not be permanent. Provided the result I have 
 described is reached, the method of attaining it 
 is quite immaterial. 
 
 Several different theories about the political 
 institutions of the United States have been put 
 forward from time to time, but I shall refer to 
 them only for the sake of suggesting the bear- 
 ing which the foregoing discussion may have 
 upon them. If Austin's doctrines concerning 
 the nature of sovereignty and of law be ac- 
 cepted, only two views of the government of 
 this country can be entertained. Of these, one 
 has been rendered famous by the advocates 
 of extreme States' rights, who considered the 
 State completely sovereign, and maintained 
 that without its own consent (a consent revoc- 
 able, moreover, at any time) neither the State 
 nor its citizens could be bound by any com- 
 mand of the central government. The other is 
 the extreme national theory, which treats the 
 authority of the States as entirely dependent 
 upon the pleasure of the national sovereign, 
 meaning, of course, by this term, not Congress, 
 but the States in union, the American people, 
 or whoever else the sovereign of the nation may 
 be. If the first of these views is adopted the 
 Constitution must be looked upon as a treaty 
 revocable by any party thereto ; if the second,
 
 220 ESSAYS ON GOVERNMENT. 
 
 it is a command issued by the national sover- 
 eign, which can be changed at will by him. 
 But if, on the other hand, we reject Austin's 
 theory, we are at liberty to consider the Con- 
 stitution neither a treaty nor a command, nor 
 even a law at all, but a declaration of the limi- 
 tations of various sovereign powers, which can- 
 not legally be changed except in the manner 
 provided in the instrument itself. The recent 
 discussion in Rhode Island, of the question 
 whether the constitution of a State can legally 
 be amended, except in the manner prescribed 
 therein, turns in part upon the same principles; 
 because if Austin's theory is sound, a constitu- 
 tion is a law set by the sovereign, who is, in 
 the case we are considering, the electoral body 
 of the State ; and it follows that this body must 
 have power to revoke or alter its own com- 
 mands. But if Austin's theory is wrong, it is 
 possible that there may exist in the State no 
 legislative or sovereign power whatever, except 
 such as is described in the constitution ; and 
 if so, neither the voters nor any other body of 
 persons can have any legal authority to make 
 changes in the government, except in accord- 
 ance with the provisions of that instrument. 
 
 It may be worth while, in this connection, to 
 remark that whether, like Austin, we consider 
 a constitution a law set by an absolute sever-
 
 THE LIMITS OF SOVEREIGNTY. 221 
 
 eign, or whether we regard it as a law made 
 without the command of a political superior, or 
 even as no law at all, but simply as a declara- 
 tion of the existing limits of sovereign power, 
 the effect of an unconstitutional statute is in 
 each case the same; because if a constitution, 
 whatever its origin, is a law of superior author- 
 ity, every inferior law inconsistent with it must 
 be void; and if without being a law, it is the 
 measure of legislative power, a statute which 
 exceeds the limits prescribed is destitute of 
 legal authority, and is equally invalid. On 
 this point, indeed, and in regard to the func- 
 tions of courts in dealing with such laws, all 
 these theories are exactly in accord. 
 
 In attacking the doctrines concerning sov- 
 ereignty and law taught by the analytical ju- 
 rists, I have in reality only been trying to carry 
 out their own principles. Before their day it 
 was customary to seek a foundation for sov- 
 ereignty in some antecedent right to rule, such 
 as a divine commission or an original compact; 
 and the great change in the theory of govern- 
 ment which Bentham and Austin introduced 
 consisted in their assertion, that sovereignty 
 was not a question of right, but of fact ; that 
 the sovereign was not the person who had a 
 right to rule, but the person who did, in fact, 
 receive obedience. The argument in the fore-
 
 222 ESSAYS ON GOVERNMENT. 
 
 going pages is an attempt to extend this princi- 
 ple, and to show that the existence of any law 
 is a question of fact. A command or rule of 
 conduct, according to this view, becomes a law, 
 not because it ought to be such, or because it 
 proceeds from a person in other respects sov- 
 ereign, but only in case it is really obeyed ; and 
 in the same way the extent of sovereign power 
 being, like the very existence of sovereignty, a 
 pure matter of fact, depends entirely upon the 
 extent of the obedience actually rendered.
 
 INDEX. 
 
 AMERICAN GOVERNMENT. 
 
 Defects of the system, 58. 
 
 Principles of, examined, 87 et seq. 
 AUSTIN, JOHN. 
 
 Theory of sovereignty in his "Jurisprudence," 190 el seq. 
 AUSTRALIA. 
 
 Power of the second chamber in, 59 note. 
 
 BENTHAM, JEREMY. 
 
 His views on the limits of sovereignty, 210. 
 BILL OF RIGHTS. 
 
 Why annexed to the Federal Constitution, 83. 
 BRYCE, JAMES. 
 
 His views on State Interference in England and America, 
 108. 
 
 CABINET. 
 
 Meaning of its responsibility in a parliamentary system, 24. 
 CABINET OFFICERS. 
 
 If responsible to Congress, would conti-ol the President, 27. 
 
 Effect of giving them seats in Congress without votes, 5. 
 CANADA. 
 
 Federal government of, 59 note. 
 CENTRALIZATION. 
 
 Tendency to in the United States, 48. 
 
 Effect of a parliamentary system upon, 36. 
 CHAMBER OF DEPUTIES. 
 
 In France, condition of, .'54. 
 CONGRESS. 
 
 With a responsible cabinet, would control the executive, 28.
 
 224 INDEX. 
 
 Represents the people only to a limited extent, 44-5. 
 
 Variations in the power of, 52. 
 CONSTITUTION. 
 
 Statute violating it, why void, 40. 
 
 Basis of its power, 42, 128. 
 
 Must be sharply distinguished from other laws, 105. 
 
 Can protect private rights only partially, 106. 
 
 Whether a law set by a sovereign, 219. 
 CONSTITUTION, BRITISH. 
 
 Puts no restraint on parliament or people, 81. 
 CONSTITUTION OF MASSACHUSETTS. 
 
 Social Compact in, 166. 
 
 French influence in, 167. 
 CONSTITUTION OF THE UNITED STATES. 
 
 Fetish worship of, in the past, 126. 
 CONSTITUTIONAL Law. 
 
 Need of careful study of, 129. 
 CONTRACT. 
 
 The means of calculating on the future conduct of men, 14. 
 COOPERATION. 
 
 Voluntary and forced, 17. 
 COURTS. 
 
 Position of, in the United States, 103, 119. 
 
 Power of, in the United States, 40, 119. 
 Has not diminished, 56. 
 
 Would vanish if the Cabinet were responsible to Con- 
 gress, 40. 
 Popular basis of, 104, 127. 
 
 Effect on the other departments of decisions by, 120. 
 
 In what sense they represent the people on constitutional 
 questions, 105, 124 et seq. 
 
 In England, once claimed a right to disregard Acts of Par- 
 liament, 170. 
 
 DEMAGOGUES. 
 
 In England and in America, 107. 
 DEMOCRACY. See also, Majority. 
 
 Its relation to private rights, 60 ei seq. 
 
 Compared with absolute monarchy, 66. 
 
 Under a parliamentary system, 74 et seq.
 
 INDEX. 225 
 
 Pure and representative, 76. 
 
 In France, 79. 
 DEPARTMENTS OF GOVERNMENT. 
 
 In the United States. 
 
 Changes in the respective powers of, 52. 
 
 Judicial department the final arbiter on constitutional 
 
 questions, 119. 
 DISSOLUTION. 
 
 Power of, necessary in a parliamentary system, 34. 
 DIVISION OF POWER. 
 
 Importance of, 91. 
 
 Two sorts of, in the United States, 93. 
 
 How made effective, 97 et seq. 
 DUE PROCESS OF LAW. 
 
 Meaning of, 85. 
 
 ENGLAND. 
 
 Parliamentary system in, 75. 
 Decay of conservatism in, 80. 
 ENTERPRISE. 
 
 Encouragement of, 10 et seq. 
 
 Requires an absence of restraints on individuals, 10. 
 
 Requires a prospect of wealth, 12. 
 
 Requires a possibility of forecasting the future, 13. 
 
 FRANCE. 
 
 Democracy in, 79. 
 
 GERMANS. 
 
 Their tendency to confuse morality and law, 171. 
 GERMANY. 
 
 Power of the Emperor of, 30. 
 
 HAMILTON, ALEXANDER. 
 
 His remark on the need of a Bill of Rights, 83. 
 HOBBES, THOMAS. 
 
 Treats of the Social Compact in the "Leviathan," 143 et 
 
 seq. 
 HOOKER, RICHARD. 
 
 Treats of the Social Compact in his "Ecclesiastical Pol- 
 ity," 137.
 
 226 INDEX. 
 
 HOUSE OF LORDS. 
 
 Its present position, 32. 
 
 INITIATIVE. See Switzerland. 
 JUDICIARY. See Courts. 
 
 KANT, EMMANUEL. 
 
 Treats of the Social Compact, 174. 
 
 LAISSEZ FAIRE. See Paternal Government. 
 LAND ACTS. 
 
 Recently passed in England, 111. 
 LAW. 
 
 Austin's definition of, examined and criticised, 194. 
 LAWYERS. 
 
 In America, their relation to constitutional law, 134. 
 LIBERTY. See also, Private Rights. 
 
 Two meanings of, 62. 
 
 Its relation to Democracy, 62 et seq. 
 LOCKE, JOHN. 
 
 Treats of the Social Compact, 150. 
 
 MAGNA CHARTA. 
 
 Meaning of the famous clause in, 85. 
 
 Misunderstood by American statesmen, 86. 
 MAINE, SIR HENRY. 
 
 His views on the Swiss " Referendum," 76. 
 MAJORITY. 
 
 In a parliamentary system, 74 et seq. 
 
 Power of, restrained in the United States, 83 et seq. 
 
 Self-control by, how aided, 89 et seq. 
 MAYFLOWER. 
 
 Social Compact made on the, 140. 
 MINISTRY. See Cabinet. 
 
 NATURAL RIGHTS. 
 
 Doctrine of, exploded, 193.
 
 INDEX. 227 
 
 PARLIAMENT. 
 
 Represents the people, 44, 75. 
 
 No restraint on the power of, 44, 81. 
 PARLIAMENTARY GOVERNMENT. 
 
 Nature of, 24, 75. 
 PATERNAL GOVERNMENT. 
 
 Nature of, 61. 
 
 Enervating effect of, 15 et seq. 
 
 Increase of, and its cause, 68 et seq. 
 
 Parliamentary system appropriate to, 74. 
 
 American system not appropriate to, 83 et seq. 
 
 Extent of, in the United States, 106. 
 
 Extent of, in England, 109. 
 PEOPLE. 
 
 Parliament represents the, 45, 75. 
 
 Congress represents, only to a limited extent, 44-5. 
 POLITICAL INSTITUTIONS. 
 
 Effect of, often exaggerated, 72. 
 POLITICAL SYSTEM. 
 
 Actual working of, must be studied, 1. 
 
 Is an organism, 3. 
 POPULAR WILL. 
 
 Development of, hindered in the American system, 91. 
 
 How far executed by the courts, 96, 105, 124 et seq. 
 PRESIDENT. 
 
 Of the United States. 
 
 Effect of a responsible ministry on, 25 et seq. 
 Variations in the power of, 52. 
 Source of his power, 98. 
 
 Of the French Republic. 
 
 Position of President Thiers, 26. 
 PRIVATE RIGHTS. See also, Liberty. 
 
 Reasons for protecting, 8 et seq. 
 
 Relation of, to Democracy, 60 et seq. 
 
 Causes of violations of, 63. 
 
 A constitution can only partially protect, 106. 
 PUBLIC OFFICERS. 
 
 Effect of having many in New England towns, 102. 
 
 Subject to ordinary law in the United States, 120. 
 
 But not in France, 121.
 
 228 INDEX. 
 
 REFERENDUM. See Switzerland. 
 RESPONSIBLE MINISTRY. See Cabinet. 
 ROUSSEAU, JEAN JACQUES. 
 
 On the Social Compact, 157 et seq. 
 
 SELF-CONTROL. 
 
 On the part of the majority, how aided, 89. 
 
 By not giving absolute power to any organized body, 
 
 90. 
 
 By creating several independent political bodies, 96. 
 By a tribunal which determines the limits of powers, 
 
 101. 
 SENATE. 
 
 Effect of responsible ministry on, 31. 
 
 Source of its power, 99. 
 
 In France, position of, 33. 
 SOCIAL COMPACT. 
 
 Origin of the theory of a, 136, 139. 
 
 Hooker's treatment of the, 137. 
 
 Grotius' treatment of the, 142. 
 
 Hobbes' treatment of the, 143. 
 
 Locke's treatment of the, 150. 
 
 Rousseau's treatment of the, 157. 
 
 Kant's treatment of the, 174. 
 
 Made on the Mayflower, 140. 
 
 An excuse for getting rid of James II., 149. 
 
 No reference to, in the French constitutions, 165. 
 
 Contained in the Constitution of Massachusetts, 166. 
 
 American judges influenced by the theory, 169. 
 
 Why the theory was monopolized by democratic writers, 
 147. 
 
 Causes of its decay in England and revival in France, 156. 
 
 Causes of the rise of the theory, 183. 
 
 Causes of its fall, 186. 
 SOCIALISM. See Paternal Government. 
 SOCIETY. 
 
 Must be based on human nature, 18. 
 SOVEREIGNTY. 
 
 Limit of. 
 
 Two doctrines in regard to, 61 , 189.
 
 INDEX. 229 
 
 Hobbes' view of, 146, 172. 
 Locke's view of, 153, 172. 
 Rousseau's view of, 160, 172. 
 Kant's view of, 177 et seq. 
 Austin's view of, 198. 
 
 Examined and criticised, 199 et seg., 213. 
 Bentham's view of, 210. 
 Practical bearing of the question, 191. 
 Depends on the limit of habitual obedience, 207. 
 And on the opinion and disposition of the subjects, 209. 
 Question one of fact and not of law, 221. 
 How limits may be established, 215 et seq. 
 Bearing of the question on the Constitution, 219. 
 Connection of the terms " Sovereign " and " Nation," 217. 
 SPENCER, HERBERT. 
 
 His explanation of the growth of socialism, 69. 
 STATE INTERFERENCE. See Paternal Government. 
 STATES. 
 
 Effect of a responsible ministry on the, 36. 
 Causes of their power, 100. 
 SWITZERLAND. 
 
 " Referendum " in, 76. 
 " Initiative " in, 78. 
 Parties in, 78. 
 
 THEORY. 
 
 True meaning of, 129. 
 
 WILSON, WOODROW. 
 
 His views on the Government of the United States, 46. 
 Advocates a responsible ministry, 48.
 
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