I confess that there are several parts of this Constitution which I do not at present approve; but I am not sure I shall never approve them. For, having lived long, I have experienced many instances of being obliged, by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is, therefore, that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. . . . Thus, I consent, Sir, to this Constitution because I expect no better, and because I am not sure that it is not the best. . . . On the whole, Sir, I cannot help expressing a wish that every member of the Convention who may still have objections to it, would, with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.

Fortunately, Franklin was not obliged to describe this Convention, as he had a previous movement in 1754: "Everybody cries, a Union is absolutely necessary; but when they come to the manner and form of the Union, their weak noddles are perfectly distracted." On September 17, 1787, moved by a wise spirit of compromise in the interest of the common welfare, the thirty-nine then remaining in Philadelphia signed a draft of the Constitution; and George Washington went back to his house that

1 Writings of Benjamin Franklin (A. H. Smyth, Ed. 1907), III, 242, letter to Peter Collinson, Dec. 29, 1754. Franklin said in the Convention, June 11, 1787: "We are sent here to consult, not to contend, with each other; and declarations of a fixed opinion and of a determined resolution never to change it, neither enlighten nor convince us"; and again, June 30: "When a broad table is to be made, and the edges of the planks do not fit, the artist takes a little from both and makes a good joint. In like manner here, both sides must part with some of their demands, in order that they may join in some accommodating proposition." See also Richard Henry Lee to M. Weare, Nov. 21, 1777: "In this great business, dear Sir, we must yield a little to each other and not rigidly insist on having everything correspondent to the partial views of each State. On such terms, we can never confederate." Letters of Members of the Continental Congress, II, 569.

night, and wrote in his Diary: "The business being thus closed, the members adjourned to the City Tavern, dined together, and took cordial leave of each other. After which, I returned to my lodgings, did some business with and received the papers from the Secretary of the Convention, and retired to meditate on the momentous work which had been executed.'

Washington's words were indeed accurate. It was a "momentous work" which had been accomplished. But in emphasizing the wonderful character of the work, historians, orators, and statesmen have imparted to the American people an erroneous idea as to the method of formation of the Constitution; and it is largely because of this misleading view that the people have failed to perceive the necessary connection between the Supreme Court and their form of government.

Nothing has given greater impetus to this misunderstanding as to the contents of the Constitution, than the widely known and much-quoted remark of Gladstone, to the effect that the "American Constitution is the most wonderful work ever struck off, at a given time, by the brain and purpose of man." This phrase has given to many the idea that the members of the Federal Convention invented the Constitution; that during the eighty-six working days of the Convention, its members originated something entirely new. Such a conception is very far from the truth. As a matter of fact, the AngloSaxon peoples differ from other peoples in the making of social and governmental institutions. As James Russell Lowell said: "Wise statesmanship does not

so much consist in the agreement of its forms with any abstract ideal, however perfect, as in its adaptation to the wants of the governed and its capacity of shaping itself to the demands of the time. . The Anglo-Saxon soundness of understanding has shown itself in nothing more clearly than in allowing institutions to be formulated gradually by custom, convenience or necessity." The Anglo-Saxon rarely develops anything by logical process, or by adopting a theory or a principle and then seeking to apply it; he develops a principle from previous experience and by expedients found desirable to meet changes of conditions. Human nature and human experience, not human theorizing, is the foundation of his action. And John Dickinson of Delaware sagely recognized this trait, when he said in the Federal Convention: "Experience must be our guide. Reason may mislead us. It was not reason that discovered the singular and admirable mechanism of the English Constitution. It was not reason that discovered, or ever could have discovered the odd, and in the eye of those that are governed by reason, the absurd mode of trial by jury. Accidents probably produced these discoveries, and experience has given a sanction to them."1

1 First Century of the Constitution, by Alexander Johnston, New Princeton Rev. (1887), IV; Lowell's Prose Works, V, 217. Debates in the Federal Convention of 1787 (1920), edited by Gaillard Hunt and James Brown Scott (hereinafter referred to as Debates), speech of Dickinson, Aug. 13, 1787; see also George Mason of Virginia, Aug. 2, 1787, who “was for preserving the ideas familiar to the people." So also James Madison wrote in The Federalist, No. 4: "Is it not the glory of the people of America, that whilst they have paid a decent respect to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?"

It is of the utmost importance, therefore, that we should recognize that the Constitution was framed in the form which it took, because its framers were familiar, from experience, with the principles of most of the provisions which they inserted in that document, or had encountered actual evils for which they sought governmental remedies. The permanence of that unique instrument of government has been largely due to the skill, the common sense, and the spirit of compromise with which the framers built on old foundations, and adapted, modified, and reconstructed old principles to meet new conditions. And it is precisely because most of the Constitution was not a bold experiment on entirely new lines that it has proven to be generally acceptable to Americans during one hundred and thirty-six years; for it was the product of experience and of traditions that had long been American in 1787, and remained so thereafter.

In the first place, the very word "Constitution", when used to signify a supreme law binding upon, and unalterable by, the Legislature was a purely American idea.1 "Constitution" "Constitution" originally meant an edict of the nation's ruler. The "Constitutions of Clarendon", promulgated by Henry II of England, in 1164, are an example of this sense of the word. In the eighteenth century, it had come to mean a general system of laws and framework of government;

1 "Constitutions themselves were things of recent date. Before the American Revolution the word itself was never fully understood. Lexicographers who attempted to define it never could agree. There was no practice whereupon to try its meaning. No power on earth had a Constitution before the American States." William Findley of Pennsylvania, in the House, Jan. 8, 1805. 8th Cong., 2d Sess.

and Bolingbroke, writing in 1735, "On Parties", said that: "By Constitutions we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions and customs derived from certain fixed principles of reason... .. that compose the general system, according to which the community hath agreed to be governed." It was in this sense that men spoke of the British Constitution — which was an aggregation of rights, liberties, and methods of government, established by Parliament or governmental practice or wrested from the King. But such a Constitution as this was subject to alteration at any time by Act of Parliament. Substantially the only suggestion in England of a written Constitution limiting sovereign powers so that (as he said) government should be an "empire of laws and not of men", was made by James Harrington in 1656, in his Oceana; and it was from his work that the Americans of a century later imbibed many of their ideas.1 The charters of the American colonies were often referred to as "Constitutions"; but most

1 See Harrington and his Influence upon American Political Institutions and Political Thought, by Theodore W. Dwight, Pol. Sci. Qu. (1887), II. A striking phrase, undoubtedly later borrowed by Jefferson, is to be found in a petition to the House of Commons, drawn by Harrington in 1659, urging the adoption of a definite political Constitution for England, in which he said "that the exercise of all just authority over a free people ought (under God) to arise from their own consent." James Otis, in The Rights of the British Colonies Asserted and Proved (1764), spoke of a theory which "the great, the incomparable Harrington has most abundantly demonstrated in his Oceana." See also The Laws and Jurisprudence of England and America (1895), by John F. Dillon: "The absolutely unique feature of the political and legal institutions of the American Republic is its written Constitutions which are organic limitations whereby the people by an act of unprecedented wisdom have . . . protected themselves against themselves." Paterson, J., in Vanhorne v. Dorrance (1795), 2 Dallas 308: "A Constitution is the form of government delineated by the mighty hand of the people in which certain first principles of fundamental law are established." Nelson, J., in Kamper v. Hawkins (1791), 1 Va. Cases 24: “A Constitution is that by which the powers of government are limited."