could affect its working. They were evil in distracting public attention from real problems to the legal aspect of those problems, and in cultivating a habit of casuistry which threatened the integrity of the Constitution itself.

Since the Civil War there has been much less of this casuistry because there have been fewer occasions for it, the Broad Construction view of the Constitution having practically prevailed-prevailed so far that the Supreme court now holds that the power of Congress to make paper money legal tender is incident to the sovereignty of the National government, and that a Democratic House of Representatives passes a bill giving a Federal commission vast powers over all the railways which pass through more than one State. There is still a party inclined to strict construction, but the strictness which it upholds would have been deemed lax by the Broad Constructionists of thirty years ago. The interpretation which has thus stretched the Constitution to cover powers once undreamt of, may be deemed a dangerous resource. But it must be remembered that even the constitutions we call rigid must make their choice between being bent or being broken. The Americans have more than once bent their Constitution in order that they might not be forced to break it.

CHAPTER XXXIV

THE DEVELOPMENT OF THE CONSTITUTION BY USAGE

THERE is yet another way in which the Constitution has been developed. This is by laying down rules on matters which are within its general scope, but have not been dealt with by its words, by the creation of machinery which it has not provided for the attainment of objects it contemplates, or, to vary the metaphor, by ploughing or planting ground which though included within the boundaries of the Constitution, was left waste and untilled by those who drew up the original instru

ment.

Although the Constitution is curiously minute upon some comparatively small points, such as the qualifications of members of Congress and the official record of their votes, it passes over in silence many branches of political action, many details essential to every government. Some may have been forgotten, but some were purposely omitted, because the Convention could not agree upon them, or because they would have provoked opposition in the ratifying conventions, or because they were thought unsuited to a document which it was desirable to draft concisely and to preserve as far as possible unaltered. This was wise and indeed necessary, but it threw a great responsibility upon those who had to work the government which the Constitution created. They found nothing within the four corners of the instrument to guide them on points whose gravity was perceived as soon as they had to be settled in practice. Many of such points could not be dealt with by interpretation or construction, however liberally extensive it might be, because there was nothing in the words of the Constitution from which such construction could start, and because they were in some instances matters which, though important, could not be based upon principle, but must be settled by an arbitrary determination.

Their settlement, which began with the first Congress, has been effected in two ways, by Congressional legislation and by usage.

Congress was empowered by the Constitution to pass statutes on certain prescribed topics. On many other topics not specially named, but within its general powers, statutes were evidently needed. For instance, the whole subject of Federal taxation, direct and indirect, the establishment of Federal courts, inferior to the Supreme court, and the assignment of particular kinds and degrees of jurisdiction to each class of courts, the organization of the civil, military, and naval services of the country, the administration of Indian affairs and of the Territories, the rules to be observed in the elections of Presidents and senators, these and many other matters of high import are regulated by statutes, statutes which Congress can change as English statutes are changed by Parliament, but which, in their main features, have been but little changed since their first enactment. Although such statutes cannot be called parts of the Constitution in the same sense as the interpretations and constructions judicially placed upon it, for these latter have (subject to the possibility of their reversal) become practically incorporated with its original text, still they have given to its working a character and direction which must be borne in mind in discussing it, and which have, in some instances, produced results opposed to the ideas of its framers. To take the latest instance, the passing of the Inter-State Commerce Act, which regulates all the greater railways over the whole United States, is an assertion of Federal authority over numerous and powerful corporations chartered by and serving the various States, which gives a new aspect and significance to the clause in the Constitution empowering Congress to regulate commerce. Legal interpretation held that clause to be sufficiently wide to enable Congress to legislate on inter-State railways; but when Congress actually exerted its power in enacting this statute a further step, and a long one, was taken towards bringing the organs of transportation under national control.1 Legislation, therefore, though it cannot in strictness enlarge the frontiers fixed by the Constitution, can

1 It need hardly be said that the now general recognition that the Constitution empowers Congress to deal with the subject does not imply that every detail of the Act is above objection. Although prima facie Congress, when competent to legislate on a subject, is free to choose its means, still it remains open to any one to challenge the constitutionality of any particular provisions in a statute.

give to certain provinces lying within those frontiers far greater importance than they formerly possessed, and by so doing, can substantially change the character of the government. It cannot engender a new power, but it can turn an old one in a new direction, and call a dormant one into momentous activity.

Next as to usage. Custom, which is a law - producing agency in every department, is specially busy in matters which pertain to the practical conduct of government. Understandings and conventions are in modern practice no less essential to the smooth working of the English Constitution, than are the principles enunciated in the Bill of Rights. Now understandings are merely long-established usages, sanctioned by no statute, often too vague to admit of precise statement,1 yet in some instances deemed so binding that a breach of them would damage the character of a statesman or a ministry just as much as the transgression of a statute. In the United States there are fewer such understandings than in England, because under a Constitution drawn out in one fundamental document everybody is more apt to stand upon his strict legal rights, and the spirit of institutions departs less widely from their letter. Nevertheless some of those features of American government to which its character is chiefly due, and which recur most frequently in its daily working, rest neither upon the Constitution nor upon any statute, but upon usage alone. Here are some instances.

The presidential electors have by usage and by usage only lost the right the Constitution gave them of exercising their discretion in the choice of a chief magistrate.

The President is not re-elected more than once, though the Constitution places no restriction whatever on re-eligibility.2 The Senate now never exercises its undoubted power of re

1 For instance, it is impossible to state precisely the rights of the House of Lords as to rejecting bills passed by the House of Commons. It is admitted that the Upper House must, as a matter of political necessity or prudence, in the long run yield to the Lower, but exactly how soon or under what circumstances is a matter on which no rule can be said to exist. A notion has grown up in some quarters that the House of Lords may properly resist till a general election, but must then bow to the will of the voters. But this idea, which of course receives no countenance from English law, cannot be deemed to have become established by custom as a part of the Constitution.

2 See ante, Chap. V. The Federalist (No. lxviii.) says that the President will be and ought to be re-elected as often as the people think him worthy of their confidence.

fusing to confirm the appointments made by the President to cabinet offices.

The President is permitted to remove, without asking the consent of the Senate, officials to whose appointment the consent of the Senate is necessary. This was for a time regulated by statute, but the statute having been repealed the old usage has revived. The Constitution is silent on the point.

Both the House and the Senate conduct their legislation by means of standing committees. This vital peculiarity of the American system of government has no firmer basis than the standing orders of each House, which can be repealed at any moment, but have been maintained for many years.

The Speaker of the House is by a similar practice entrusted with the nomination of all the House committees, an arrangement which gives him an influence upon legislation greater than the President's.

The chairmen of the chief committees of both Houses, which control the great departments of State (e.g. foreign affairs, navy, justice, finance), have practically become an additional set of ministers for those departments.

The custom of going into caucus, by which the parties in each of the two Houses of Congress determine their action, and the obligation on individual members to obey the decision of the caucus meeting, are mere habits or understandings, without legal sanction. So is the right of the senators from a State to control the Federal patronage of that State, a right shaken (as observed in an earlier chapter) by the victory of President Garfield over Mr. Conkling, but still largely exerted. So is the usage that appropriation bills shall be first presented to the House.

The rule that a member of Congress must be chosen from the district, as well as from the State, in which he resides, rests on no Federal enactment; indeed, neither Congress nor any State legislature would be entitled thus to narrow the liberty of choice which the words of the Constitution imply, though some State legislatures have affected so to do.

Jackson introduced, and succeeding Presidents continued the practice of dismissing Federal officials belonging to the opposite party, and appointing none but adherents of their own party to the vacant places. This is the so-called Spoils System, which, having been applied also to State and municipal offices, has been made the corner-stone of "practical politics" in America. The