PREFACE

THIS work contains the evidence of changesand, it is believed, of progress-in the ideas and opinions which the American people have held respecting the principles, the organization, and the administration of their civil institutions. It is a record of the evolution of government in this country since the Revolution, and it rests upon authorities hitherto almost entirely disregarded. Constitutional history is the history of a constituency, which, consciously or unconsciously, is ever striving to promote its own welfare. A constitutional history deals primarily with persons, not with documents. Laws and constitutions, written or unwritten, are the evidence of the efforts of a constituency to secure its ends. The development of constitutional government consists, essentially, in the definite limitation of authority, in order to accomplish purposes either implied or specified. These purposes are constant demands. upon the constituency, but the means adjudged reasonable or necessary for securing them are as constantly changing. The process is from things to persons; it is progressive because it is dynamic.

No one can go over the evidence which this work presents and have his confidence shaken in the fact that American civil institutions are an enduring monument to the general amelioration of the conditions of human life which characterizes modern civilization, and particularly the civilization of the last century and a half. Yet, when we reflect on the humanity of government in our day, we realize that we are startlingly near the age that interpreted criminal law to be for the purpose of exterminating, not of reforming, evil-doers-an age which felt compelled to include in its written constitutions of government the provision that excessive bail should not be required. nor excessive fines imposed, nor cruel and unusual punishments inflicted. Public opinion to-day is the living law whose mercy seasons justice.

There is another, perhaps a more impressive, proof of the general amelioration of men, manners, and laws — namely, the gradual growth of the national idea-that is, the gradual disappearance of isolated, petty, and antagonistic communities, and the slow but sure recognition of the presence of an organic and moral person which we call the Nation. It is yet but a partly discovered country, but every voyage of social and industrial effort uncovers its farther shores. Our constitutional history, like that of every other people, is a history of the evolution of religious, of political, and of industrial rights. The steps in all this progress are recorded in the results of many struggles. Among these are the struggles

Preface

for the extension of the suffrage, for the equitable apportionment of representation, for the abolition of discrimination on account of race or of previous condition, for the organization of systems of education free to all, for the separation of the state from questionable practices, and for the establishment of government directly upon the will of the people. Incidental to these processes has been the slow definition of the functions of the state, of its rights as a moral person in coordination with the rights of the individual and of its powers and their fields of operation—executive, legislative, and judicial. And, finally, the evidence suggests, what seems to escape the attention oftentimes not merely of individuals, but also of masses of men-that government is made for man, and man not merely for government.

The evidence enables us to deduce, with approximate accuracy, the principles on which government in America rests. The peculiar claim of popular government to universal authority is its identification with the great principles of civilization. It claims to be founded upon the rights of man and the principles of human nature. Popular government is still on trial. Its principles are simple and profound, and often seem lost in a mass of legislation, judicial decision, executive action, and popular agitation. It is possible to know its facts and miss its principles. If the evidence here presented shall lead the reader to the consideration of these principles, the purpose for which this history has been written will have been accomplished.

The principal authorities upon which the evidence rests are the laws and constitutions of the country, and the journals, proceedings, and debates of constitutional conventions. The constitutional convention originated in America, and is a recognized political institution in modern government. Perhaps it might be called the principal contribution of America to the political agencies of the world. It is a grand committee of the constituency authorized to submit a plan of government. Its discussions have hitherto been neglected as evidence of the nature of American civil institutions and of their trend and administration. The traditional distinction between State administration and national government has done much to establish a popular notion that they rest on different principles. The history of our institutions confirms the contrary idea, that government in this country rests upon principles broad and general, and that the idea of union is as scientific as it is legal.

A word may be added on the method of treating the subject. Government rests on ideas and ideals. These, in so far as unfolded at the organization of the American commonwealths in the eighteenth century, are traced, some to their origin and all to their end, in the earlier chapters of the first volume. An examination of the constituency follows the people in their local civil organization and also in their racial and social relations. Our dual system of government-State and national-sooner or later compelled issues involving