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ADOPTION OF THE CONSTITUTION.
M HE constitution of a nation may be quite another
I thing from a national constitution. The latter may be written on parchment, and attested by seals, signatures, and oaths, and yet have within it no particle of the life of the nation, nor give to this a durable form. The former, as in England, may be unwritten and conventional, the growth of ages; the life of the nation shaping to itself form and features appropriate to its condition. An able expounder of the English Constitution says, “ The received doctrine as to the relations of the two houses of parliament to one another, the whole theory of the position of the body known as the cabinet, and of its chief, the primeminister, every detail, in short, of the practical working of government among us, is a matter belonging wholly to the unwritten constitution, and not at all to the written law. ... We now have a whole system of political morality, a whole code of precepts for the guidance of public men, which will not be found in any page of either the statute or the common law, but which are in practice held hardly less sacred than any principle embodied in the Great Charter or in the Petition of Right.”] It is greatly to the honor of the English people that they are able to govern themselves with so much evenness and stability, while dispensing with a formal constitution.
And, on the other hand,, one of the foremost patriots and publicists of France, Édouard Laboulaye, just after
1 Growth of the English Constitution, by E. A. Freeman, M.A., pp. 109, 113.
the revolution of 1848, said, " In the last sixty years we have changed eight or ten times our government and our constitution; have passed from anarchy to despotism; tried two or three forms of the republic and of monarchy; exhausted proscription, the scaffold, civil and foreign war; and after so many attempts, and attempts paid with the fortune and the blood of France, we are hardly more advanced than at the outset. The constitution of 1848 took for its model the constitution of 1791, which had no life; and to-day we are agitating the same questions that in 1789 we flattered ourselves we had resolved. How is it that the Americans have organized liberty upon a durable basis, while we, who surely are not inferior to them in civilization, — we who have their example before our eyes, - have always miscarried ?”
The answer to this question I have anticipated, in part, in the last Lecture, by a comparison of the two peoples in their antecedents, their institutions, their surroundings, and, above all, in their ethical beliefs and motives. But, in this point of constitution-making, it will also be seen that the Americans, with a rare felicity, succeeded in incorporating the constitution of the nation, which is its life-principle, with the national constitution, which gives to the national life its definitive form and expression. They not only achieved independence, but, in the happy phrase of the French critic, they “ organized liberty." This success was due to training, to methods, and to men, or rather to that mysterious conjunction of men and events that makes the genius of an epoch akin to inspiration.
None has divined this more clearly than Laboulaye, nor pictured it with more strength and grace of outline, or beauty of coloring. “It was amid obstacles without number that the founders of American liberty organized a government. One cannot forget the sad spectacle that America presented at the moment when the peace obtained by our efforts promised her happy days. The newly-born republic just missed dying in its cradle. Ten years of war had impoverished the country; paper-money had led fatally to bankruptcy; no credit, no money, no finance; the weakness of the central power encouraged the inde
1 Études morales et politiques, par Édouard Laboulaye, p. 285.
pendence of the particular States; disunion was everywhere; anarchy and sedition threatened with approaching ruin that new government, the impotence of which England proclaimed with a secret joy; and already in America itself, on that soil where no king had yet been, there was talk of a monarchy as the only régime that could found and maintain the unity of a great country.
" Then it was, when all seemed lost, when Washington himself began to despair of the future, — then it was that there were found men clear-sighted enough to see. the remedy for so many evils, bold enough to propose it, and devoted enough to undertake a work apparently impossible,- to reclaim biassed opinion, to direct minds toward one common end, and, spite of all prejudices and all particular interests, to found the Union. With no other means than speech and the pen, these plain citizens proclaimed the necessity of a constitution that should unite so many scattered members, caused Congress to adopt their project of a revisory convention, determined the country in the choice of its institutions, defended these institutions against the attacks of passion or of error, and, by dint of patience and courage, finally endowed America with that democratic organization which constitutes its strength and greatness.
“ Such was the work of Franklin, Randolph, Madison, Jay, and of those two men united by a constant friendship, and whom history will never separate, — the one, Washington, the grandest character of modern times in his disinterestedness and his perseverance; the hero who under a stern front concealed the passion that ruled his whole life, — the love of country and of liberty: the other, that loving soul, that generous heart, that ready mind, which fortune found always at its level; that soldier, orator, writer, legislator, financier, who was by turns the arm, the pen, and sometimes the thought, of Washington, — the brave, the chivalrous, the unfortunate Hamilton. The separation of powers, the independence of the President and the administration, guaranties against usurpation by the assembly, the rôle of the judicial power, the distribution of the right of suffrage, communal and provincial liberty, individual liberty, right of association, liberty of the press, — there is not one of these delicate questions, which, after protracted examination by the legislators of the United States, was not settled with admirable wisdom and reason. Upon the merit of their solution, time, that irrefragable judge, has pronounced without appeal.” 1
We have seen that the Colonies went to war with the mother-country without organizing a distinctive government, and without even contemplating a change in the form of government under which they had hitherto lived. The Continental Congress that met in Philadelphia in May, 1775, was an extemporized assembly for counsel and conciliation. Recognizing the war that had begun at Lexington and Concord as the common cause of the Colonies, it adopted the army of New England as the Continental army, and appointed Washington to the chief command, but at the same time declared, “ We have not raised armies with designs of separating from Great Britain, and establishing independent States. Necessity has not yet driven us into that desperate measure.” And this was after the battle of Bunker Hill would seem to have made separation both a necessity and a duty. As Washington passed through New York on his way to his command, the legislature of that province presented him with an address, in which they spoke of “ an accommodation with the mothercountry” as to the fondest wish of every American soul.” And in his reply Washington said, “ Be assured that every exertion of my worthy colleagues and myself will be extended to the re-establishment of peace and harmony between the mother-country and these Colonies. As to the fatal but necessary operations of war, when we assumed the soldier, we did not lay aside the citizen; and we shall most sincerely rejoice with you in that happy hour, when the establishment of American liberty on the most firm and solid foundations shall enable us to return to our private stations n the bosom of a free, peaceful, and happy country." 3
Within a year, we find the Congress at Philadelphia forced to declare that very separation from Great Britain
1 Études morales et politiques, pp. 279–281.
2 The battle of Bunker Hill was June 17; this declaration of Congress on the 6th of July following (1775).
3 Pennsylvania Journal, July 5, 1775; see in Moore's Diary of the American Revolution.
which it had disavowed as 6 a desperate measure.” Thus sprang into being the union of " free and independent States," at war with the greatest naval power of the world, yet having no executive head, and no government but a Congress of less than sixty members, originally chosen while the Colonies were yet subject to the mother-country, and for the main purpose of securing the liberties of the Colonies in harmony with their allegiance to the crown. In organizing the Continental army, and in declaring inde pendence, Congress knew that it was backed by the will of the people: it found the state of war existing, and made provision for it. The war necessitated independence, and Congress proclaimed the fact. It must needs stand by its own proclamation, and go on to govern the nation it had ushered into being. To change front in face of an enemy is always a difficult and dangerous manœuvre; and Mr. Lincoln's homely adage, “ Don't swap horses in the middle of the stream,” justifies the Congress in not attempting to create a radically new government at the very moment of defying and irritating the enemy by the declaration of independence. Though Congress exceeded its original powers, its government was not a usurpation, but a necessity. Quickened by the flames of war, the nation was struggling through a political chaos toward its own organic life.
With the exception of Washington himself, who never underrated the gravity of the situation, the leaders of the Revolution seem to have fancied that the war would be soon over; that a single campaign would satisfy Britain of the impossibility of subjugating America, and bring her to conditions of peace. But when Britain continued to send fleets and armies swollen by mercenaries, and Washington reported, that having little ammunition, and no regulars, he could only act on the defensive, Congress was obliged to rouse itself for a conflict of indefinite duration, and perhaps doubtful issue, and in this emergency found itself without authority, without money, without supplies, except in the spontaneity of popular enthusiasm. Now, popular enthusiasm is apt to subside under disappointment, disaster, or delay; and a legislative body chosen to represent the popular will is sure to wane in authority and