opens the way to administrative outlays far exceeding those to which the country has been accustomed.

Nevertheless, on the whole, and in spite of these warnings, the bulk of the people of America are prepared to make these sacrifices. They are weary of standing aloof among the nations; while conscious of the theoretical wisdom of such a policy of abstention. But their practice has left the old theories far behind. The wealth, the luxury, the ambition of the individuals has permeated the body politic. If America were still a nation of husbandmen, the primeval simplicity, the lofty ideals, the sacrificial seclusion which marked the fathers of the commonwealth, would still have served. But these virtues have long been supplanted by other traits; the husbandman has been pushed aside to toil for the race of capitalists, the land is invaded by a cosmopolitan horde eager for sudden wealth, the stress of living has vastly increased; in short, the national character has been tinctured by its pursuits, just as the national body has outgrown its old clothes.

America (at least in the East and manufacturing districts) is well able to pay much higher taxes than she now pays. But the sources of revenue provided by the Constitution have already begun to show significant limitations. The duties imposed by the Protection tariff are now about as high as they are ever likely to reach. The scale of duties as now levied would have astonished the Protectionists of a generation ago.

To tax the people further it is plain a new system will have to be devised. At present, the Supreme Court holds that an income-tax is unconstitutional; at the

same time, the Constitution expressly prohibits the levying of any direct tax not susceptible of apportionment among the States in accordance with their population. Consequently, the only two remaining resources are indirect internal taxation and increase of the National Debt, upon both of which the war with Spain obliged the Government to draw heavily. For some time to come it is clear there will be no further lowering of the National Debt, and internal taxation will be made heavier.

The few fat years which have so astonished Europe, will be followed by the lean ones; but, despite the stress of domestic trials, America must continue to shoulder her Imperial responsibilities.

CHAPTER V

THE NEW CONSTITUTION AND LAWS

"A CONSTITUTION," said Walter Bagehot, "is a collection of political means for political ends, and if you admit that any part of a Constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the Constitution, however dignified or awful it may be, is nevertheless in truth useless."1

In 1901 Mr. Justice Brown drew the attention of his American compatriots to "the manifest danger to the future of the country which lurks in the inflexibility of the Federal Constitution." 2

For the people of America have for nearly a century agreed to consider themselves ruled by an inflexible Constitution, not to be amended or modified except by the method set forth in the instrument itself.

1 "The English Constitution," p. 4.

2 In a remarkable letter of Hamilton's, dated February, 1802, he despairs of the Constitution, which, however, he was "still labouring to prop,” but which was "a frail and worthless fabric. Yet Hamilton was the first to seize on the convenient doctrine of the implied power of the Constitution. The growth of nationality, and the conversion of the agreement of thirteen States into the character of a nation, have been largely the development of the implied powers. This, remarks Senator Lodge, is the central point of Hamilton's whole policy, and in his bold declaration of the implied powers of the Constitution he laid bare his one predominant purpose of building up a powerful national government.

This is, of course, a delusion: the unwritten and flexible American Constitution promises in time to be the greater power of the two; the other destined, perhaps, to bear a similar relation to the whole as the unwritten portions of the British Constitution, such as Magna Charta, the Petition of Rights, the Habeas Corpus Act, the Bill of Rights, and the Act of Settlement.

America is, par excellence, a judge-governed country, because in no other on earth is the power of the courts of justice comparable to that wielded here. The common phrase "a judicial ruling" has in America, as we shall see, a very literal signification. An executive edict or a legislative act appears to be powerless for good or evil if the court of last resort, after due argument and consideration, shall pronounce it contrary to the fundamental law contained in the Constitution.

All depends, therefore, on the interpretation of the Supreme Court.

Chief Justice Marshall, in 1803, declared that the written Constitution was supreme, and that any Act of Congress not in accord with it was void.1 But since Marshall's time the written Constitution has been steadily losing force. It has been repeatedly amended by decisions of the Supreme Court which have often overruled previous judgments. This was inevitable; the garments made for the Republic of 1789 were beginning to be outgrown. How much less would they have fitted the nation of 1903? Certain State Governments have lately complained that their legislation had not a free hand by

1 During Marshall's time the attitude of the Supreme Court was one of absolute independence as a co-ordinate department; the government and fundamental principle of constitutional law were formulated in opposition often to the administration and often to public sentiment.-Pingrey.

reason of the intervention and "greed of jurisdiction " of the Federal Supreme Court.

The famous Dred Scott decision in 1856 marked the change, so that the doctrine actually carried into effect approximates the prevailing public sentiment or the pronounced party policy of the current administration. In brief, the Constitution can be changed not necessarily by amendment, but by "judicial construction."1

One of the most interesting examples is the decision in the legal tender cases of 1869-70, showing clearly how subservient to administrative necessity the American Supreme Court may be. A previous interpretation of the Constitution was reversed, and it was held that the power to make the notes of the National Government legal tender in discharge of private debts was one of the inherent rights of sovereignty in all civilized nations, and that as the Constitution did not expressly withhold it from Congress, that body had the power so to legislate for the United States. In other words, the jus gentium, or law of nations, recognizes such authority, and therefore America ought to follow suit, notwithstanding her peculiar federal structure. But this certainly clashes with the doctrine that Congress can exercise no power by virtue of any supposed inherent sovereignty in the general government, inasmuch as sovereignty resides in the people, and Congress can exercise only such powers

1 A sound constitutional lawyer has recently shown clearly that Congress has under the Constitution the power which was not previously believed to make all attempts upon the life of the President or other high officials punishable by death. This was supposed to require a special constitutional amendment. It has also the power to prevent the importation into America of persons known to hold anarchistic sentiments, whose presence would be dangerous to national peace and security. More "judicial construction"!