alone failed to put into practice the revolution-breaking revolutionary doctrine which Jefferson inserted in the Declaration of Independence, that “whenever any form of government becomes destructive" of the ends for which governments were "instituted among men, "it is the right of the people," yea, "it is their duty," "to alter or to abolish it, and to institute new govern

to the English unwritten constitution as it existed in the seventeenth century (which is called "flexible," p. 190), and very different from the United States written constitution and the English unwritten constitution of to-day. The English constitution of to-day could easily be written out, only that many of its clauses would be vague and unprecise; but the amendment clause would run thus: "This constitution can be amended by Parliament in the same manner as any law is enacted." As Parliament consists of Commons, Lords, and King, the latter may be counted upon to resist amendments that adversely affect them. Facts, too, show that since 1789 the English constitution has been altered perhaps as frequently in appearance as our Federal Constitution, but by no means so frequently as many of our State constitutions (and if these have been mostly patched in minor matters, they allow themselves to be altered with equal ease in fundamentals). Yet in reality our Federal Constitution does not suffer in the comparison. The greatest alteration in the English constitution was the redistribution of seats and extension of the suffrage made by the Reform Act of 1832, supplemented by two or three later acts; but our Federal Constitution contains a clause which automatically redistributes seats every ten years, and apart from the great change in citizenship made in 1868, the suffrage for the representatives has been altered every time a State has changed its suffrage, which has been done not infrequently. All Bryce's argument for the superiority of flexible over rigid constitutions, is an argument for making the method of amending written constitutions easy. The lax construction-treatment of our Federal Constitution is a direct result of its rigid amendment clause, one fault producing another. Here, as Bryce says, "flexibility" is "supplied from the minds of the Judges" (p. 197); which is a great abuse. It is a pity our constitutionmakers did not invent the system later adopted in Switzerland and copied in the Australian Commonwealth, which requires constitutional amendments, after being sanctioned by the federal legislature, to be presented first to the state legislatures and then to the people, only a simple majority being necessary in each case. This favors both the small and the large states, as a majority of the former with a minority

ment, laying its foundation on such principles and organizing its powers in such forms, as to them shall seem most likely to effect their safety and happiness,' in confidence, based on "all experience," that "prudence will dictate that governments long-established should not be changed for light and transient causes, yet affording opportunity for changing them for serious and permanent reasons.

I

Among the reactionaries of this brief period unfortunately John Adams was one of the leaders, as he had in the early period been among the leaders of the democratic tendency. In that earlier period he had stood shoulder to shoulder with his kinsman Samuel Adams, and with Jefferson and the others. Now he abandoned them. After his stay in Europe he came back from his embassy to England antagonistic to the Radicals there, and infected with Whiggism-another instance of the melancholy spectacle, not uncommon, of a Sydney before turning into a Locke after success. And like of population, or a majority of the latter with a minority of states may stop proposals injurious to their respective interests, while other proposals that really are improvements have a fair chance of getting through. It would have been eminently in the spirit of compromise which reigned in the Convention, and would probably have been adopted if it had been thought of (though Madison came near to it, Elliot's Debates, v., 499, supported by Wilson, 500; cf. The Federalist, No. 62, sect. 3; and long before, in another connection, Sherman, reported by Adams, ii., 499). Is it too late? Almost any improvement in our Constitution (except by the dangerous method of construction, almost wholly and solely aristocratic, or in our case plutocratic) is impossible, except after long delay, until this amendment clause itself is amended.

I

' But for this mistake in our Federal Constitution, it is possible the Civil War might have been averted, since an amendment regulating and gradually suppressing slavery might then have had a chance of passing: cf. Bryce, op. cit., p. 190. Possibly also the mistake of permitting the protection of special privileges in high tariffs might have been rectified, which would have smoothed the way to allay the irritation between the two sections.

the Whigs he tried, having used the people, to shove them into the background-as yet not quite so far, perhaps, as the Whigs, since he still had use for them. He still allows that the right to the sovereignty resides inalienably in the people1; but the sovereignty itself may be divided, and when the people have once used their right to share it with the aristocracy and with a line of kings, they will give up the right to resume it except by revolution. Hence he had little further use for the people's law, the constitution, embracing as it does the people's inherent power of revising and altering it to all perpetuity: that also, after its general outlines as plotted in his theory had once been established, had to be ignored as much as possible, and the government alone had to run of its own force, its equilibrating system being relied on to prevent any upsetting. But the government, he held with the English lawyers, is the legislative (composed of king or governor and two chambers); and the balances had to be poised between these—that is, within the legislative.3 The

See above, p. 131.

2 As inserted by himself, in his first period, in the Massachusetts constitution of 1780, iv., 225, following that of Virginia, which latter, sect. 3, placed it inalienably in “a majority of the community."

3 Obviously Adams desired the negative in each of the three branches of the legislative for exercise not only against ordinary legislation, but against constitutional alteration. For an Anglicanized constitution of this sort, it is evident, as is quoted from him in the first note in this chapter, that a veto in each branch is necessary for its preservation; since a people, possessed of the distinction between primary constitutional law and representative legislation, would not permit the continuance of such a constitution. This should be remembered by those who honestly advocate the negative in each of the branches of the legislative merely for ordinary legislation. Its usefulness in this field Adams did not think much of (at least in the case of the executive negative); nor need we.

206

judiciary stood apart, and was of little importance in the affair.

Still, the Constitution-the fundamental law, possible only because our ancestors did not have separate orders, and written because it was new and all new laws are now written in civilized states-exists. It is the instrument attesting the people's act. It frees them from the need of continual surveillance, which, in fact, is left to the judiciary as the custodian of the people's reserved rights. That the Americans, in setting up their governments under government-binding laws of their own, and retaining the amendment of these in their own hands, were perfecting the science of government left imperfect by the English, Adams refused to see; nor could he foresee that in so doing they were setting an example to be, after many failures, more or less perfectly followed by the rest of Europe.1

I Perfectly, of course, only where the constitutions have been set up by the peoples themselves. Elsewhere the constitutions are nothing but charters, like our colonial charters, granted to the people by the kings. But even so they are, in some countries, regarded as irrevocable without the concurrence of both parties, and consequently without the consent of the people. This, we may notice, is the utmost concession from the Tory position, and approaches, from the opposite side, the Whig position: the Tories conceding that the king cannot alter the constitutions without the people's consent, and the Whigs maintaining that the people cannot alter the constitutions without the king's (or the lords') consent. If the Whigs have sometimes allowed the people alone (especially the lords) to do so on occasions of royal misbehavior justifying revolution, the Tories have not hesitated, even more frequently, to urge the king alone to do so on occasions of popular misbehavior which, they thought, disengaged the king. The last occurrence of the latter sort took place in Portugal a few years ago; and it cost the King his life.

III. SOURCES AND ORIGINALITY OF

ADAMS'S DOCTRINES

CHAPTER XV

CONTEMPORARY EXPOSITORS OF THE ENGLISH CONSTITUTION, AND UNNOTICED CHANGES

ADAMS laid no claim to originality. He expressly

(though, as just shown, wrongly) asserted that "America has made no discoveries of principles that have not been long known," that, in fact, no "general principles" remain to be discovered. In his opinion, all the true principles had already been reduced to practice in England. The English Constitution, therefore, he especially admired, along with its "miniature" copies in the American colonies, which, with their governors and councils or upper chambers independent of the people, were closer copies than the subsequent more popular governments of the States. Still, the dissimilarity of the social conditions, especially at the North, had prevented even the colonial governments from becoming perfect imitations. In his early studies Adams no doubt had heard of, and perhaps now grieved over, the little incident near the beginning of Massachusetts history, in 1634-6, when an unsuccessful

I VI., 477, in 1814.

IX., 188, in 1798, and x., 45–6, in 1813.