into account, yet are the very things which with us create a sturdy national feeling then unknown. In the days of Rome the motive of public life was the municipal consciousness, or, as it is termed by Fustel de Coulanges, "l'esprit municipal." But where, as with us, life is absolutely uniform throughout as to its essentials, the determinant of the municipal economy is convenience. Americans would, probably, point out at once the differences of life in different parts of the broad country, losing sight of the less striking similarity. But we have excellent testimony as to the cause of the common heart which has always responded to the national call. The modern contrast to the ancient idea is presented by Mr. Bryce, as follows:

"Uniformity is felt in the very aspects of nature. Uniformity of cities is even more remarkable. Indeed, there is uniformity of political conditions over the whole United States. Everywhere there is the same system of State governments, everywhere the same municipal government. The schools are practically identical in organization, in the subjects taught, in the methods of teaching, though the administration of them is as completely decentralized as can be imagined, even the State commissioner having no right to do more than to suggest or report. So it is with the charitable institutions, with the libraries, the lecture courses, the public amusements. They are the same in type everywhere. It is the same with social habits and usages.

Thus, whereas in Rome the "cité" was in one sense a State, so in America the whole nation is in the same sense a "cité." Uniformity of city life is both a guarantee of national liberty and of local self-government.

1 American Commonwealth, 3d ed., Vol. II., chap. cxvi., p. 317.

Let us define the two-self-government and centralization in the words of the authority upon that subject.1

"Local self-government is that system of government under which the greatest number of minds, knowing the most, and having the fullest opportunities of knowing it, about the special matter in hand, and having the greatest interest in its well working, have the management of it, or control over it.

"Centralization is that system of government under which the smallest number of minds, and those knowing the least, and having the fewest opportunities of knowing it, about the special matter in hand, and having the smallest interest in its well working, have the management of it, or control over it."

Such a thing as centralization cannot exist in the United States so long as self-government exists. That which would appear to be centralization in Rome would be liberty where life is uniform. Any other than uniform external regulation would be productive of that confusion which troubles liberty and complicates the problem of maintaining absolute internal self-regulation. No problem is well solved that is not understood. Many a people has placed its neck in the yoke by calling for what it thought justice and liberty. Many a State has clamored against centralization with a cry that estopped it of its liberty and self-government. This is the fatality of most republics. But when the people not only feel but understand what they feel, this mistake is not made. This was the case in England at the time of the charters.

1 Toulmin Smith, Local Self-Government and Centralization, London, 1851.

Having felt their grievances for a long time the people were put to inquire the true basis of their liberties. They found it in the apparent centralization which was the best guarantee of local self-government, and they made contracts upon the terms of that discovery which created true nationality for all Englishmen and liberty for all. Those contracts were the charters and upon them our liberties rest. The form of the grant was that of a deed, but it was also the form which legislation by the whole nation took at that time. They are the basis of the common law of England. They are also an integral part of the law of the United States and are the basis of the unwritten constitution the common law.

§ 17. UNDER THE CONSTITUTION OF THE UNITED STATES THE POWER OF THE NATION TO PROTECT RIGHTS IS LESS RESTRICTED THAN UNDER THE UNWRITTEN BRITISH CONSTITUTION. THE POWER TO REGULATE COMMERCE. That the rights of American citizens are not dependent upon a written expression in a constitution and that the powers of government are adequate to the protection of all rights is the dominant idea in the writings of Cooley. The best single exposition was made in an article extracts from which follow.1

1 Comparative Merits of Written and Prescriptive Constitutions, 2 Harvard Law Review, 341-357; see Cooley's Michigan Decisions quoted infra, chapter vi. They are not dicta but asserted the inherent right of local self-government in such emphatic terms and adducing such incontrovertible support from history as to establish that right in the case law of Michigan. See also Dicey, The Law of the Constitution, p. 187, "The Constitution of the United States and The Constitutions of the separate States are embodied in written or printed documents, and contain declarations of rights. But the statesmen of America have shown unrivalled skill in

"The weakness commonly inhering in a written constitution is that it is formed regardless of the most important principle of all, namely, the principle of growth and expansion. No such vice inhered in the Constitution of the United States. Our fathers wisely clung to what their ancestors had won in their long struggles for personal freedom, and just as wisely appropriated the general principles of government which in the course of ages had become settled and accepted in England. It was only in a very narrow sense that the new government could be called a new creation. In its separation of the powers of government, in the division of the legislature into two branches, and in the union of the executive as a third branch, the constitution of England was closely followed. We may say the same as regards the bill of rights, which was added to the Constitution by amendments; the leading princ ples are all to be providing means for giving legal security to the rights declared by American constitutions. The rule of law is as marked a feature of the United States as of England." In an explanatory note Dicey says that "the Petition of Rights and the Bill of Rights are not so much 'declarations of rights' in the foreign sense of the term, as judicial condemnations of claims or practices on the part of the Crown which are thereby pronounced illegal." He submits that "the Declarations in the American Constitution have . . . the distinct purpose of legally controlling the action of the legislature by the Articles of the Constitution." James C. Carter said in his

address on "The Ideal and the Actual in the Law," delivered before the American Bar Association, August 21, 1890: "Indeed, it would be more correct to say that all real laws do execute themselves, and that it is such only as thus execute themselves which are, in a just and philosophical sense, laws. Law being the mere expression of the universal habits and customs of the people in their jural relations it follows that it is for the most part silently obeyed." See also his "Provinces of the Written and Unwritten Law."

found in Magna Charta and the other charters of English liberty which the people of America at the time of the Revolution had claimed as a part of their inherited freedom, and demonstrated their right to by their success.

"The principles of liberty which were thus appropriated were likely to have a somewhat different meaning and to give a broader protection in America than in England. Adopted in America, they took on to some extent an American sense; they were relieved from implied limitations and exceptions which were known under the English system but were foreign to American ideas and usages. We imported our law, but in some sense it was raw material to be worked over, and the first step in the process was to relieve it of whatever had come from the recognition of privileged classes, or of classes subject to special burdens. Magna Charta, therefore, in its protection of life, liberty, and property by the law of the land means more in America than it did in England; it is more comprehensive, more impartial.

"The written constitution as well as the unwritten may be a true growth; it may be framed on the plan of embodying the settled principles already evolved and manifested in the history of the people, and of crystallizing them in exact form, instead of leaving them vague and indeterminate as the unwritten constitution in a measure must do. And this plan was worked out in the Constitution of the United States; it was framed on the principle and with the purpose of preserving for America everything in the British Con-stitution which was suited to the condition and circumstances of the new world; and there is not in all