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In this process there may be, and often are, critical periods; there may be, and often are, important writings. The Magna Charta was one such in England; the Constitutions of Clarendon were another. But the nation is not made by these; these help to form its constitution only so far as they are actually embodied in its real life. If it has a written constitution, as we profess to have, still its real character is determined not by the writing, but by the life, and it changes its constitution by its life, whether it incorporates those changes in the written document or not. as an American people are to-day, not what Hamilton and Madison said we ought to be; we are what we have been, what our national life has made us. Even our written Constitution itself is changed by other processes than those of formal amendment. It has been often said by jurists that Chief Justice Marshall has done as much to make the real Constitution of the United States what it is, though he never wrote a line of it, as did any of its framers.1 We have recently passed through an epoch in which we have incorporated a very important element in our National Constitution. The question

1 "The task which Marshall had to perform was the arduous one of construction; fortunately he had to a very striking degree the constructive faculty, a rare gift, and certainly the highest form of intellectual ability which lawyers can ever use and display." John Marshall, Allan B. Magruder, p. 165. The very words here used, "constructive" and "construction," indicate the recognized function of a chief justice, which is to construct the constitution by the very process of interpreting it.

arose whether a representative might be excluded by Congress from his seat in Congress because he was a polygamist. He had been unquestionably elected by a majority of the district which he claimed to represent. One party in Congress said: No! the district has an absolute and final right to select whom it will, and if the man thus selected has the three qualifications, age, residence, and citizenship, without which no man can enter Congress, he must be admitted, no matter what his character. The other party replied: Every man in the House of Representatives represents not only his State, but the Nation, and although the initiative comes from the State, the Nation possesses a veto power, and can refuse to allow a man who is living in open violation of the laws of his State and the moral sentiment of the Nation to represent the Nation in its legislative body; and the House of Representatives, by a vote of 286 to 50, decided that Congress, that is, the Nation through Congress, had such a veto power over the action of any particular State. In the future this is the Constitution of the United States. It has been made so by the decision of a body in whom the constitutional power of rendering that decision has been vested. Thus the government, whether it has a written constitution or not, grows by means of decisions more or less formally registered and more or less fully carried out in the national life. The protection of our property and our person depends, not primarily upon the statutes that have

been enacted by the legislatures of the various States, not primarily upon the statutes that have been enacted by the Congress of the United States, but upon what is known as the common law; and the common law is nothing more or less than the customs which have grown up among the AngloSaxon people. It is thus evident that the Constitution and laws of the United States, and still more evident that those of Great Britain, are the product of a gradual growth, beginning, let us say, with Alfred the Great and continuing to the present time.

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The character of a nation, then, may be described as the result of three coöperating forces: first, a racial characteristic; second, the acceptance by a nation in its birth-period, or one of its successive birth-periods, of a dominant principle cracy by Russia, the supremacy of the State over the Church by England, the authority of the common people by the United States; and, third, the national habit, applying these fundamental principles to changed conditions, perhaps adding new and cognate principles, perhaps modifying those already accepted for better or worse, or departing from them more or less widely. Finally, this national habit is incorporated in writings in the form either of text-books recognized as authoritative because they reflect the national organic will, or of judicial decisions authoritatively declaring that will, or of codes issued by legislative authority or approved by popular acquiescence and acceptance.

It is, therefore, a great mistake to suppose that the authority of the law dates from the promulgation of the code. The code is generally the last step in the growth of the national law. It is not authoritative because it is promulgated; it promulgates what is already authoritative. In general, the codification of a system of laws marks the end, not the beginning, of its growth.1 When, therefore, the modern critic says that the Book of Deuteronomy was written B. C. 640, and the Book of Leviticus B. C. 525, he does not mean that the civil laws incorporated in the one and the sacrificial system

1 The reader will find these principles elucidated and illustrated by Sir Henry Maine in his Ancient Law, especially in chaps. i. and ii., from which I quote a few significant and suggestive sentences: "The Homeric word for a custom in the embryo is sometimes 'Themis' (0éμis) in the singular-more often 'Dike' (Sikn), the meaning of which visibly fluctuates between a 'judgment' and a 'custom' or 'usage.' 'Nomos' (vóμos), a Law, so great and famous a term in the political vocabulary of the later Greek society, does not occur in Homer." "It is certain

that, in the infancy of mankind, no sort of legislature, not even a distinct author of law, is contemplated or conceived of. Law has scarcely reached the footing of custom; it is rather a habit. It is, to use a French phrase, 'in the air.'" "The Hindoo Code,

called the Laws of Menu, which is certainly a Brahmin compilation, undoubtedly enshrines many genuine observances of the Hindoo race, but the opinion of the best contemporary orientalists is, that it does not, as a whole, represent a set of rules ever actually administered in Hindostan. It is, in great part, an ideal picture of that which, in the view of the Brahmins, ought to be the law." ... "When primitive law has once been embodied in a code, there is an end to what may be called its spontaneous development. Henceforward the changes effected in it, if effected at all, are effected deliberately and from without." Pp. 5, 7, 16, 17, 20.

incorporated in the other were then first instituted. He means rather that they were then first completed, and so capable of being reduced to a codified form.

As the modern State is the product of a gradual growth, so is the modern Church. Each denomination is inclined, naturally, to carry back its dogmatic beliefs and its ecclesiastical usages to a remote time, and claim for them a divine origin ; to think itself born full grown. But each denomination recognizes that the beliefs and usages of its neighbor have been gradually developed, by a process more or less lengthy and complex, from simple beginnings. Thus, whatever claim the Roman Catholic ecclesiastic may make for the divine origin of his church, the Protestant scholar unhesitatingly traces in ecclesiastical history the successive steps by which that church has grown to its present complex faith, organization, and ritual. He tells us that the celibacy of the clergy, the adoration of the Virgin, and the use of images all date from the fourth century; that Indulgence as a release from the pains and penalties of purgatory was not formally announced until the fourteenth century; that the title "pope " was applied to all bishops in the primitive church, and that the supremacy of the bishop of Rome was not claimed until the fourth century, his infallibility was not asserted until about the eleventh, and was not authoritatively affirmed until the nineteenth. The canons of that church are equally the product of