opinion, and the latest act of parliament is the law of the land. Is not the latter more free than the former? More free but less stable, we answer; more power to the majority and less privilege to the whole people. In this condition rests the great distinction of the constitution of the United States. History has often recorded the grant of rights or privileges to subjects by kings or by aristocracies or by minorities.' But the federal compact was the first deliberate attempt and assent of a majority to tie its own hands; to give to the minority guarantees of fair and equal treatment, without which democratic government is well-nigh impossible, save when developed along the lines of socialism. Our state governments, in which few such guarantees have been successfully evolved, have again and again oppressed the minority; but, with hardly an exception, the national government has been true to its purposes. Where the state governments have been unchecked by the national; where they have had omnipotent powers, they have directly or indirectly robbed classes of their citizens for the benefit of other classes, and committed other wrongs in the name and by the will of the majority. Not long since New York state, one of the fairest and least prone to discrimination in the Union, by law has decreed that a minority of its citizens shall be made to contribute, by means of an inheritance tax, the larger part of the government revenues; so in Great Britain the majority have successfully, through a graded succession tax, placed undue burdens upon the minority; and in neither have the minority the slightest recourse, unless that of expatriation can be considered such. But in our national government the most distinct limitations have been fixed, and when recently, in the income tax of 1894, the majority endeavored to tax the minority, while exempting themselves, the law was annulled, because it was unconstitutional.

This guarantee to the minority in the federal constitu

'Instanced in Magna Charta and the French Bill of Rights of 1789.

tion is one of the most remarkable examples of self-control in history, and constitutes its chief claim to preeminence. The explanation of its origin can only be obtained by a history of the years preceding its framing.

In the colonial period the law-making power in the provinces was placed in the hands of popular assemblies; the execution of those laws, or their negation, in the hands of colonial governors appointed by Great Britain, with a second veto by the king in council; and the construing of those laws was confided to judges, likewise for the most part. named by the sovereign, with a final appeal from the local courts to the courts of the Privy Council. Thus the people were from early times accustomed to popular legislation, controlled first by a negative of their local executive and courts, and ultimately by a supreme national executive and courts. The laws of parliament overrode a colonial statute, the king's veto killed a law assented to by the king's governor; and the courts of the Privy Council reversed the decisions of the provincial

courts.

The American Revolution destroyed this system and brought into existence in its stead government by popular committees or conventions; and as the cities were mostly loyal to the crown, and during the war were largely held by the British, -thus excluding their citizens from influence in these popular bodies, the provisional governments were controlled by the landholding classes. Remembering with hatred the alien checks on the popular will which the king's negative and courts had so often, and sometimes with cruelty, imposed on the people, when these representative bodies came to frame new governments they practically lodged all powers in the legislative department, -hitherto the only one which had approximated to the people's will,-and made the executive and judicial branches its creatures.

Unchecked by the balance usually supplied by manufacturing or commercial interests, the landholding classes, by their legislatures, in turn unchecked by coordinate departments, ran riot. Paper money and tender

laws robbed the creditor, regrating and anti-monopoly acts ruined the trader. When the weak state courts, true to the principles of justice, sought to protect the minority, the legislatures suspended their sitting, or turned the judges out of office. The general government, called into existence by the articles of confederation, which had been modeled on the Batavian and Helvetic constitutions,' was but a legislative dependent of the state legislatures, with scarcely a shadow of executive or judicial power, and was therefore equally impotent to protect. For the moment a faction of agriculturists reigned supreme, and to the honest and thoughtful, democracy seemed to be digging its own grave, through the apparent inability of the majority to control itself.

Fortunately injustice to, and robbery of, fellow-citizens, eventually injure the wrong-doer as well as the wronged. A time came when the claims of the creditors had been liquidated and the goods of the traders had been confiscated, and the former refused further loans and the latter laid in no new stocks. The capitalist and the merchant were alike ruined or driven from business, and it was the landholder, unable to sell, to buy, or to borrow, who was the eventual sufferer. Such was his plight that he could not in many cases sell even enough of his products to get the money to pay his annual taxes,' and this condition very quickly brought home to his own. instruments of wrong doing, the legislatures, the evils they had tried to fasten on the minority. Taxes were unpaid, and, except where the conditions were factitious, the state treasuries became empty. Finally, in an attempt to collect the taxes in Massachusetts, a formidable revolt of tax-payers against the state government was precipitated. Everywhere the state legislatures had become objects of contempt in just so far as they had

1 Inaugural address of John Adams, 1797.

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What numbers of fine cattle have returned from this city [New York] to the country for want of buyers? What great quantities of salted and other provisions still lie useless in the stores? To how much below the former price is our corn and wheat and flour and lumber rapidly falling?"—John Jay, in "Pamphlets on the Constitution," 73.

sinned against classes of citizens, and the people were threatened with a breakdown of all government, by the misuse of majority power. It has been the fashion of historians to blame the Congress of the Confederation with the ills of 1781-1789, but that was an honest, and, when possible, a hard-working body, and the real culprit was not the impotent shadow of national government, possessing almost no powers for good and therefore scarcely any powers for evil, but the all-powerful state legislatures, which proved again and again, as Jefferson asserted, that "one hundred and seventy-three despots would surely be as oppressive as one."

The revolt of Shays, and the less aggressive but universal discontent against the state governments were protests too loud spoken not to warn the legislatures of their own peril, and in a frightened, half-hearted way, they one by one gave their consent to the assembling of a convention to plan such changes in the articles of confed. eration as should at least give to the state governments a national protection from their own citizens. Accordingly, in June, 1787, a body of the most earnest and experienced men gathered in Philadelphia and set about the task of framing a new national government.

Not a few of the members of the federal convention had been sufferers by the injustice of state laws, and they were prepared to apply the knife deeply to the malady of the body politic. Indeed, those who had but a few years before started out as strong democrats had re-acted. Dread of the people and dread of democratic government were felt by all those who did not draw the

1" Notes on Virginia," 157.

2 It was fear that Shays's revolt would spread to within the borders of its own state that made the New York legislature vote the call for the federal convention, and the fright it gave Massachusetts was the cause for the assent of her assembly to what it had negatived but a few months before.

As an example, Washington had bonds and mortgages to "nigh £10,000" paid off in depreciated paper money, worth at times as little as 2/6 in the pound, and when he attended the federal convention, he was in arrears for two years' taxes through having been unable to sell the products of his farms.

distinction between popular control and majority control, between limited and unlimited governments.

From this fear of populace and of state governments, qualified by the necessity of framing a government which should be based on both, came certain clauses of the constitution the convention framed, which made it the instrument it is. The legislature or Congress was split into two bodies, that each might act as a check on the other, and strong executive and judicial departments were created, armed against the legislative by the once hated royal powers of appointment, veto, and annulment, that they might maintain their independence of the law-making branch, and even limit its power. Having split the Congress, the lower branch was given to the people, while the upper was given to the state legislatures, thus opposing a barrier to the will of the state governments in the House and to the will of the people in the Senate. Not daring to trust either people or legislatures to choose a president, a select body of citizens was created, to whom the choice of that official was assigned, thus making a second defense from the populace or state legislatures. To the President was given the appointment of the judiciary, thus removing that department, by a second selection, three degrees from popular choice or influence. Roger Sherman's plea to the convention that "the people should have as little to do as may be about the government" seemed fulfilled.

But the minimizing of popular control was only half the restraint that the convention had to create. The powers of the state legislatures, as the tools of the majority, must be also curtailed, or they would encroach on the general government as they had on their own. The laws of the nation were made, as the parliament laws once were, superior to state laws. Power after power was swept from the states: they could keep no troops or navy; they could not coin money, emit bills of credit, or pass tender laws; they could not enact bills of attainder, ex post facto laws, or laws impairing the obligation of contract. Such were the chief limitations,

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