Constitution as a fact. The eradication of domestic slavery from a nation whose fundamental code in its letter permitted it, as a result of civil war, would be such a change.

§ 65. I pass now to consider the nature and specific varieties of Constitutions of the first two kinds, that is, of Constitutions considered,

First, as organic growths; and

Secondly, as instruments of evidence.

I. Adverting to the first of the proposed subjects of inquiry. what I have to say upon the nature of Constitutions considered as organic growths, will be confined to this central question: Are Constitutions founded upon compact?

When it is affirmed that a Constitution is founded upon compact, what is meant? Obviously, either that, at the opening of its historical development, it became what it did by virtue of an actual agreement between the individuals then composing the state, to which agreement all subsequently born individuals became, from time to time, parties; or, that while there was never, probably, an agreement between such individuals in fact, their relations to each other and to the state, and their consequent rights and duties, are what they would be, had there in fact been such an agreement; in other words, that if there was no agreement in fact, one may be supposed, to account for facts not otherwise so easily explained. That is, the doctrine of compact, as the foundation of Constitutions, must be asserted either as a fact or as an hypothesis. Considered as a fact, it is sufficient to deny that a Constitution ever thus originated, in a proper sense of those terms. All Constitutions, and, of course, all governments, are growths, the products of social and political forces; among these reckoning as well the traditions, and the physical, intellectual, and moral conditions of the society, as its relations to other political societies. It is doubtless true, that, whilst one effect of these forces is, in the domain of fact, to evolve the actual Constitution, another is, in the domain of opinion, to evolve what is called the consent of the governed. The two effects are, indeed, necessary concomitants, being the different results of the same causes operating in the diverse spheres specified. But to say that the Constitution is based upon that con sent is, in my view, as absurd as to attribute to the consent of its component particles the structure and functions of a plant.

Doubtless those particles acquiesce, and if they were sentient beings, with conscience and will, that acquiescence, without ceasing to be determined by natural laws and forces, might be denominated consent. So the acquiescence of great societies or races in the founding of governments and dynasties is only by a figure of speech to be called their consent; it is rather resignation to the action of forces which they have neither ability nor desire to countervail. The human race have always acquiesced in the revolution of the earth about the sun; they have sat down to study its causes, and recognized with thankfulness its accruing advantages, no faction, so far as history shows, the church, perhaps, in Galileo's time excepted, ever even protesting against it; but it does not follow, therefore, that the system of planetary motion, of which that revolution is a part, was founded on the consent of the earth or its inhabitants, or on a compact between them and the residue of the universe.

§ 66. If, on the other hand, the doctrine that Constitutions, considered as facts, are founded upon compact, is put forth as an hypothesis merely, for purposes of illustration, and if its hypothetical character is kept constantly in the foreground, it may be viewed with more indulgence. The true office of an hypothesis is to provide a theory of causation adequate to account for known facts, and yet without vouching for its absolute verity. It supposes the theory may be true. It also equally supposes it may be false, admitting readily, indeed, that the next fact discovered is nearly as likely to prove it false as true. But, whether in fact false or true, its usefulness for scientific purposes is the same. It serves as a lay figure, on which to exhibit to advantage in all their relations truths that are connected but obscure. But the danger is that that which is supposed will insensibly lose its hypothetical character and come to rank as a truth, and so be made the basis of reasoning to other truths as unsubstantial as itself, but ignorantly, on account of the regularity of their deduction, accepted as undoubted. An instance of such a perversion of hypothesis into political axiom is seen in the history of the dictum of the Roman jurisconsults, based on the fiction of a "Law of Nature," namely, that "all men are by nature equal;" which, revived by the French lawyers and by 1 "Omnes homines naturâ æquales sunt," the maxim of the Roman lawyers of the Antonine era. - Maine, Ancient Law, p. 89.

Rousseau, passed from them, through Jefferson, into the American Declaration of Independence. Mr. Maine, in his late profound work on "Ancient Law," has demonstrated, that in its inception, this doctrine was propounded merely to express the relations of the various peoples of Rome to one another, under an hypothetical law of nature. According to that supposed law, he says, "there was no difference in the contemplation of the Roman tribunals between citizen and foreigner, between freeman and slave, agnate and cognate." In those tribunals, then, the maxim as to the equality of all men meant, that in the eye of an imaginary law, derived from a supposed" state of nature," all the inhabitants of Rome were equal. But, when taken up by the writers of later times, the doctrine that all men are by nature equal was used in a different sense, no longer bearing on merely civil, but also on political relations, namely, to signify that "all men ought to be equal." Thus, what was originally a particular statement relative merely to an hypothetical code of civil law for the "Latin name," has come to be propounded as a political axiom of general application.2

§ 67. Conceding, then, that the doctrine of compact we are considering was propounded by its authors as an hypothesis merely, the danger was that men should come to look upon it as the expression of a fact, and thereupon spin from it conclusions that would be disastrous to society. Precisely such has been the fortune of this famous doctrine during the last hundred years. It has been received as a political axiom of general application and of absolute truthfulness. The fact, however, is, that it is a fallacy, or, at least, a fancy, which is dignified beyond its deserts when it is ranked as an hypothesis. History records no instance in which such a compact as the theory supposes was ever made; and to imagine it, except for the purpose of exposition or illustration, is as puerile as to trace the social union of a swarm of bees to a compact made at some imaginary congress, when each bee was in a "state of nature." The state of nature

for the bee is that of union in the swarm; and so the state of nature for mankind is that of association in political communities, patriarchal or other. The rights and obligations growing out of the social state are as old as the absolute rights of indi1 Maine, Ancient Law, pp. 70-92.

2 Ibid.

viduals. They are not the results of cornpact, but are parts of the system of human society, devised by the Creator "in the beginning."

968. It may be well in this place to complete our view of the theory of compact, as the basis of Constitutions, by considering its application to the second class of Constitutions noted, namely, Constitutions considered as instruments of evidence. Of these, compacts, in a proper sense of the term, often form parts. To explain my meaning, it is necessary to consider how Constitutions of that kind arise. It will be seen in subsequent sections that some are merely collections of customs, statutes, and judicial decisions, published by unofficial persons, that is, persons without authority to pronounce definitively upon their letter or import; whilst others are simply statutes enacted by sovereign authority. Of the former kind, the English Constitution is an example, and of the latter, that of the United States. Now, when a people frame a Constitution in the second sense, or make a law or a treaty, which becomes a part of such a Constitution, what is the nature of their act? It is a translating into appropriate legal language, and a formal registering amongst the archives of the nation, stamped with the fiat which marks the national acquiescence and gives to it authenticity, of the Constitution, or part of a Constitution, which has, in the progress of the nation and under the operation of all its social forces, actually evolved itself as a fact.

Such a work evidently requires the highest powers, and is not likely to be executed with unanimity. Where the details of the Constitution as a fact are so apparent that the people are of one mind as to the legal formula requisite to embody them, there would be no compact; for, to produce that, there must be divergence of opinions, resulting finally in agreement. Where, however, a divergence had arisen, but had finally ended in a com. promise, involving, not a conviction in the minds of one party that the views of its opponents were correct, but a surrender of its own, that results might be achieved, there would be a compact. Thus, to illustrate, there arose in the Federal Convention two parties on this question: Given the absolute necessity of a closer union of the States, for their prosperity and safety, and the necessity, on the other hand, equally absolute, for the conservation of our liberties, that the States should be retained as

political organizations, what is the representation in the national Congress that is alone consistent with the attainment of both those objects? One party said, it must be that of representation proportioned to population. This party was composed of the large States. The other party, made up of the small States, replied: "No; such a rule would place our fate in your hands; you would combine and wipe out State lines, and thus bring shipwreck upon our liberties. The Constitution of the United States, as a fact, as it has evolved itself under the operation of existing forces, and for which we are seeking an adequate expression, involves State equality, because, without it the system cannot stand. The representation must be set down by us as equal from all the States, great and small." This divergence of opinion was radical, and, as is well known, came near frustrating the efforts at a closer union. Happily, however, a compromise was effected. A middle course was found, which fully satisfied neither, namely, to declare that the representation sought for the unknown quantity in the problem was, in the House, a representation proportioned to population, in the Senate, equal. This was a compact. But it is important to note, that it was a compact, to use a common phrase, but "skin deep." It was a compact which settled, not that the Constitution, as a fact, was as laid down in the instrument then framed, but that it should for the nonce be so declared and considered; each party retaining still its opinion as to the fact, and the right, in the way pointed out in the instrument itself, to cause that opinion ultimately to prevail. Whether the formula agreed upon did in truth embody the then existing Constitution as an objective fact, is a wholly different question, which I do not decide.1

§ 69. It is evident that, if the views presented in the foregoing sections be sound, a very important question may arise, namely. admitting the possibility of discrepancies between the Constitution of a state, as a fact, and its constitution as an instrument of evidence, which has the superior validity? In answering this question, it would be easy and to some minds the temptation would be strong to propound doctrines subversive of all regulated liberty. The reply seems reasonable, that the Constitution, as an organic growth, the Constitution, as it ought to be written out, to harmonize with the results of existing social 1 See Commonwealth v. Aves, 18 Pick. R. 193, per Shaw, Ch. J.