1. Written Constitutions are liable, if not frequently amended, to become inadequate, an evil inseparable from all attempts to define the powers of that which is in a state of transition or growth. 2. If facility exist for producing amendments, there is danger that constitutional changes may be made the objects of party warfare for party purposes. Changes might thus be forced into the written instrument before they had wrought themselves out in the Constitution as a fact. 3. Written Constitutions, whatever may be the facilities afforded for amending them, are too inflexible. In a nation of the magnitude of ours, the process of changing its Constitution is, at best, slow. In the mean time, its rulers may be tempted, under the influence of great national interests, or under the pressure of threatening calamities, to violate it; the danger of doing which is much greater where its provisions are generally understood, than under an unwritten Constitution, most of whose provisions are doubtful or unfamiliar.1

§ 79. The advantages of unwritten Constitutions may be embraced in a single proposition: they are likely at all times to be more correct expressions than any others of the corresponding Constitutions, considered as objective facts. This follows from the process of their development. An unwritten Constitution is a record, by more or less competent observers, of fundamental changes which have occurred in the structure, principles, or guaranties of the Constitution considered as a fact. These changes are not made, but work themselves out under the operation of determinate social and political forces. They do not evolve themselves per saltum, as in written Constitutions, but gradually and continuously. They who transcribe such a Constitution, merely watch, pen in hand, the play of the producing forces and note results as they are achieved. These results become parts of the Constitution as a fact, and the delineation of

1 De Maistre thus sums up his opinion of written Constitutions: He maintains," 1. That the foundations of political Constitutions exist in advance of all written law. 2. That a Constitution is and can be but the development of a preexisting unwritten law. 3. That that part of a Constitution which is most essential, most intrinsically constitutional, in short, which is truly fundamental, never is, and without imperiling the whole political system, never can be, reduced to writing. 4. That the weakness of a Constitution, and consequently its liability to infraction, are directly proportioned to the multiplicity of its written articles." -Works, Tom. I. p. 12.

them, made by the observer, a part of the unwritten Constitution considered as an instrument of evidence.

§ 80. It is obvious that if Constitutions, considered as facts, could develop into institutions as conspicuously and as perfectly as does the tree into fruit, the unwritten would be by far the most perfect of Constitutions, since then the text of it would immediately reflect actual fundamental changes. This, however, is not the fact. Excepting occasionally when a change is wrought out by a charter or by a statute, whose terms of course would be certain, unwritten Constitutions are determined by the growth of customs or of institutions, emerging often so imperceptibly as to elude common observation. And wherever there is obscurity or doubt, there are the conditions of conflict. Hence, though it is probable fundamental changes will be sooner registered in an unwritten Constitution, they are no more likely to have developed themselves peacefully than when they occur under a written Constitution. The truth is, that conflict is the condition of such changes everywhere. It is, however, less likely to be prolonged when, as soon as it is ended and the victory announced, the battle-cry of the victorious party is inscribed in the Constitution, as a part thereof, than when it must still be embodied in it by a formal vote of the electors.

§ 81. Considering the excellencies and defects of the two varieties of Constitutions, it is not easy to strike a balance between them. For a community whose political training has been carried to a high degree of perfection, in my view, an unwritten Constitution would, on the whole, be preferable. In that training two elements would be of vital consequence to the safety of the system: 1. An accurate understanding of their political rights and duties, general among the citizens. 2. Sleepless vigilance to detect violations of the Constitution, and the utmost promptness and energy to resist and punish them. Without either of these elements, the usurpations of public functionaries must bring the system to speedy ruin. But for a community whose training has been imperfect, or which is subject to fits of political apathy alternating with those of intense zeal for reform, a written Constitution is doubtless the better one. While less flexible to the pressure of the national will, and therefore liable, in many of its provisions to become obsolete and oppressive, it is a formidable barrier against usurpation. Its provisions are so plain that he

who transgresses them must generally do so intentionally, and that fact must be so apparent that usurpation would in most cases not be ventured upon, as likely to rouse a dangerous opposition. The superiority of such a Constitution in the circumstances supposed, follows from the fact that immobility, with its train of possible evils, is less dangerous than movement that is ill-judged or unconstitutional.

§ 82. To render a written Constitution safe, however, under the most favorable conditions, it must embrace efficient machinery for its own amendment, and that machinery must be so devised as neither to operate with too great facility, nor to require to set it in motion an accumulation of force sufficient to explode the system. Two tendencies are observable in reference to the way in which a Constitution is regarded by the citizens of a state, both equally reprehensible: the tendency to idolize the letter of it, or, on the contrary, to under-estimate its real sacredness, and so to degrade it to the level of ordinary laws. The latter leads to undue tampering with constitutional provisions for purposes of selfish or partisan ambition. The former begets that foolish kind of conservatism which clings to its worn-out garments until the body is ready to perish with cold. Mr. Jefferson insisted that no Constitution ought to go longer than twenty years without an opportunity being given to the citizens to amend it. This opinion he based upon the consideration that, by the European tables of mortality, it appeared that a generation of men lasted, on an average, about that number of years, and that every succeeding generation, like its predecessor, had "a right to choose for itself the form of government it believed most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that received from its predecessors." 1 If to this there be appended the provisos, that amendments shall only then be attempted if they are pronounced necessary by the representatives of the people, and that they may be made at any time when so pronounced by a vote cast under circumstances making it probable that it reflects the settled will of the people, the opinion is doubtless a sound one. § 83. But it is not enough that a Constitution provide a mode for effecting its own amendment; it is necessary that 1 Letter to Samuel Kercheval, of July 12, 1816. Jefferson's Works, Vol. VII. PP. 9-17.

there should be developed a political conscience impelling to make amendments in the written Constitution when such as are really important have evolved themselves in the Constitution as a fact. Our courts can, in general, recognize no law as fundamental which has not been transcribed into the book of the Constitution. When great historical movements, like those which have lately convulsed the United States, have resulted in important political changes, that are so consummated and settled as to indicate a solid foundation in the actual Constitution, they should be immediately registered by the proper authority among the fundamental laws. Why embarrass the courts and fly in the face of destiny by refusing to recognize accomplished facts? A point of honor should in such cases be cultivated, compelling the citizen to acquiesce in the decrees of the Almighty as written in events, similar to that which forces an English minister, on an adverse division upon an important measure, to resign his office. If political self-abnegation cannot, under written Constitutions, be developed to the extent indicated, it may be laid down as certain, that no commonwealth, governed by such a Constitution, can long survive.1

§ 84. In the United States, all Constitutions, considered in their evidentiary character, with two exceptions, have been written Constitutions. The peculiar circumstances of our political situation which occasioned this uniformity have been explained in the first chapter. And the exceptions alluded to are as significant of the principles which determined the rule as the cases strictly comprised within it. Connecticut and Rhode Island had unwritten Constitutions at the time of the Revolution, modeled in general after that of England, which continued in force until 1818 and 1842 respectively. The democratic character of those Constitutions had so satisfied the people of those colonies, and their experiences under them of parliamentary oppression had been so slight, that there seemed no need of a change when the yoke of England was cast off. As their rulers had not been able. to oppress them under the old order of things, it was believed they would be unable to do so under the new; hence their polity was left unchanged. In the other colonies, the principle of express

1 For a vigorous discussion of the article of the Federal Constitution pertaining to amendments, in which the position is taken that that article is wholly inadequate, see Fisher's Trial of the Constitution, ch. i.

limitation of powers was universally adopted. The result has been the formation of a hundred or more Constitutions, conforming strictly to the character of written Constitutions above presented. Throughout all these, a family likeness is observable in every feature, internal and external. It will be the object of the remaining sections of this chapter to point out the varieties, the mutual relations, and the internal structure in general of these Constitutions, so far at least as the exposition may tend to aid us in determining the powers and duties of conventions, whose function it is to frame them - the real purpose of this

work.

§ 85. Before proceeding to the task indicated, however, it may be useful to ascertain with precision the distinction between a Constitution or fundamental ordinance, and an ordinary municipal law. Both must be denominated laws, since they are equally "rules of action laid down or prescribed by a superior."1 Ordinary laws are enactments and rules for the government of civil conduct, promulgated by the legislative authority of a state, or deduced from long-established usage. It is an important characteristic of such laws that they are tentatory, occasional, and in the nature of temporary expedients. Fundamental laws, on the other hand, in politics, are expressions of the sovereign will in relation to the structure of the government, the extent and distribution of its powers, the modes and principles of its operation, and the apparatus of checks and balances proper to insure its integrity and continued existence. Fundamental laws are primary, being the commands of the sovereign establishing the governmental machine, and the most general rules for its operation. Ordinary laws are secondary, being commands of the sovereign, having reference to the exigencies of time and place resulting from the ordinary working of the machine. Fundamental laws precede ordinary laws in point of time, and embrace the settled policy of the state. Ordinary laws, are the creatures of the sovereign, acting through a body of functionaries existing only by virtue of the fundamental laws and express, as we have said, the expedient, or the right viewed as the expedient, under the varying circumstances of time and place.

§ 86. It is perhaps possible best to illustrate the distinction 1 Worcester's Dictionary, in verb.