What becomes, then, of the boasted intelligence and manhood of American laborers? As was said by the New York Court of Appeals of laws of this character: "Such legislation may invade one class of rights to-day and another to-morrow, and if it can be sanctioned under the Constitution, while far removed in time, we will not be very far away in practical statesmanship from those ages when governmental prefects supervised the building of houses, the rearing of cattle, the sowing of seed and the reaping of grain, and the governmental ordinances regulated the movements and labor of artisans, the rate of wages, the price of food, the diet and clothing of the people, and a large range of other affairs long since in all civilized lands regarded as outside of governmental functions. Such governmental interferences disturb the normal adjustments of the social fabric, and usually derange the delicate and complicated machinery of industry, and cause a score of ills while attempting the removal of one."

The wisdom of this view is exemplified by the history we have made in Colorado within the last month. We were moving along contentedly, our mines in full operation, the smoke stacks of our furnaces in full blast, with useful employment for all. Then comes the legislature with an edict that the public health is suffering because men are working more than eight hours a day in mines and smelters, and prohibiting them from so doing. The scale of wages must then be changed, everything thrown into confusion by the altered conditions which a compliance with the law make necessary in the operation of plants; a strike follows, the smelters are closed, the mines shut down, railroad employés are laid off, and all because a few labor agitators have constituted themselves the guardians of the public health, and a complaisant legislature has let them have their way.

No legislature can bring about a healthy coöperation of industrial affairs between employer and employé, which treats the one as a tyrant and the other as a mental weakling. Instead of remedying any ills, it intensifies them by arraying class against class. It allures by false promises, after the manner of our old acquaintance, "Honest Jack" Cade.

He was the prototype of all labor agitators, and he laid down this platform:

"There shall be in England seven half-penny loaves sold for a penny; the three-hooped pot shall have ten hoops, and I will make it a felony to drink small beer. And the first thing we do, let's kill all the lawyers."

ADDRESS

OF

EDWARD L. JOHNSON

OF

DENVER, COLORADO.

HAVE WE AN UNWRITTEN CONSTITUTION?

Mr. President, Ladies and Gentlemen: Political writers have remarked that it is impossible to originate by agreement, a constitution for a people; that a written constitution can hardly do more than set forth rights already existing, and can never fully express the real constitution. It occurs to me to inquire, in such superficial and perhaps rambling fashion as I may in the time at my disposal, whether our national history give any countenance to this view.

And, first, I can not think that the framers of our federal Constitution are open to the censure of having invented a constitution. Their materials were at hand, scattered indeed, but still existing, in the colonial or state governments, in the Confederation or in the English system. The Confederation was still there; its written constitution unchanged, itself in a rapid decline. The Articles leagued the states together during the war for independence, but now that the chief purpose of the league was achieved, the states tended to fall away from one another. As the constitution of a confederation, the Articles had pretty well outlived their purpose, and as a national constitution-for the American nation then only beginning to be they were inadequate. They did not express the half conscious longings for nationality. Such longings, unquestionably, there were. The germs of a national union-discordia semina rerum-existed from

the beginning, in the colonies. They had certain deep rooted family characteristics which tended to bring them together, and from time to time, in pursuit of some common object, they had formed temporary or partial unions. The vicissitudes of the long struggle against the mother country, its experiences of good and evil fortune shared by the people of all the states, gave a great impulse to the nationalizing forces. But the counter tendencies toward individual isolation or partial groupings of the states, which had been mostly dormant during the war, became very wide awake in the years which followed the declaration of peace.

To harmonize these warring elements, or to devise at least a modus vivendi between them, which should in time grow into. a perfect peace, was the high undertaking of the framers of the Constitution. They saw the beginnings of nationality, struggling to emerge from the incipient anarchy of state individualism, in imminent danger of being stifled by the aggressive life of the states. These they sought to rescue and cherish; this was the purpose of the debates, the concessions, the compromises of their convention. With doubt and apprehension they proposed the Constitution to the people, and in the like reluctant, questioning mood the people adopted it. Its framers knew that their work, aiming as it did at completeness, was in advance of the conscious aspirations of the time, and with mingled hope and fear they committed it to the unknown influences. of the future. Three years before the meeting of the convention, the hope and the purpose of its members were anticipated and expressed by Gouverneur Morris in a letter to John Jay. “A national spirit," he said, "is the natural result of national existence, and although some of the present generation may feel colonial oppositions of opinion, yet this generation will die away and give place to a race of Americans."

The adoption of the Constitution proclaimed the existence of the nation by creating the form of a national government. Time and events should develop the national spirit, and fix and declare the national character. The Constitution was a great compromise between a national unity and a federation of the states. It was a bond, partly natural, partly artificial, which should hold the members of the Union together, until their repellent characteristics being softened, they should, out of their affinities and sympathies, grow to be really one. It was, there

fore, in this aspect, a creative, anticipatory, semi-prophetic work. But it was a written document, not a living organism. It was a tool, not a workman. It did not act of itself, nor interpret itself, nor apply itself. It aimed, indeed, to harmonize and unify the individual tendencies and divergencies of the states and of their populations, but it was itself to be used to that end by these very states and people. These were to give life to its dead letter; its colorless text was to take its hue and complexion from theirs. The machinery of the federal government was to be put in motion, its movements were to be controlled and directed by, the states, the people, with all their differences and conflicts of interest and tendency. In these latter existed, in these as they then were and as they should grow to be, the Constitution of the United States, in so far as it then had or should in the future have a real existence-the living, the unwritten Constitution. Whether this, as it should grow and change, would find in the written instrument an adequate expression of itself could not be foreseen. Indeed the experience of the Revolutionary Congress and of the Confederation made it doubtful.

Theoretically, the Continental Congress, so it is said, was clothed with supreme powers which flowed from the purpose for which it was created-the independence of the colonies. These were implied powers, since the congress was not acting under any written authority or compact. Such is the theory; but in fact the congress did not use these supposed powers, because it felt that it did not really possess them. In touch with its constituents, it felt no pulsation of national life, no nation back of it. The states were all in all. The nation, still scarcely more than a possibility, had neither a written nor an unwritten constitution. In a great crisis the congress seems to have drawn upon its implied powers by giving almost dictatorial authority to Washington. The general acquiescence in this act may serve to show something like a national ratification, and that the nation was at least a possibility.

The Confederation was an attempt to form something in the nature of a union, with express, but limited powers. It was an advance beyond the revolutionary confederacy, but remained a mere league of states. The express powers conferred by its Articles it could not execute against an unwilling state; and on the other hand it disregarded the Articles when supported by the states. It had power to make treaties, but could not

execute the treaty of peace with England nor its commercial agreements with other nations. It had no power to acquire, govern or subdivide into states the territory northwest of the Ohio; none the less it passed several acts and resolutions upon these subjects, and finally enacted the great ordinance of 1787. All of this was done, says Mr. Madison, "without the least color of constitutional authority." By what authority, then, was it done? The written Articles did not meet the case; the interest was common, the occasion urgent, the acquiescence general— and so it was done under the all-sufficient authority of the unwritten Articles. There was, therefore, from time to time, during the fifteen years before the adoption of the federal Constitution, a manifestation of constitutional forces making towards or away from national unity, which did not invoke the authority of any compact.

Even our federal Constitution we owe to an assembly which was unconstitutional in its origin, conduct and consequences. The Articles of Confederation provided for their own amendment by submission to the states of changes to be proposed by congress. But congress proposed no changes; the Articles were ignored, and the state legislatures named delegates to meet in convention. These were instructed to prepare and suggest amendments to the Articles. They disobeyed their mandate and prepared, not amendments to the existing Articles, but a brand new Constitution, different in substance, essentially other than the Articles. Now the Articles declared that they themselves should be inviolably observed by every state; that the Union should be perpetual; and that no change should be made in them unless agreed to in the congress and confirmed by the legislature of each state. But congress did not approve nor agree to the new Constitution; it simply invited the states to hold conventions for the purpose solely of adoption or rejection. The perpetuity of the existing Union, the necessity that each state should consent to a change, were no obstacles to the constitutional convention. It declared that adoption of the Constitution by nine states should create the new Union as between them, in spite of the possible refusal of four of the thirteen to abandon the old or adopt the new one. In fact eleven states accepted the Constitution; the new government was organized; Washington was inaugurated and the United States became a nation. Thus did eleven states, in violation of their compact,