d the
English judiciary, then the judicial power must be embodied either in a
military or political leader, like David, who does the work himself, or
in an agent, more or less like Jeffreys, who will obey his orders. In
the colonies the subserviency of the judges to the Crown had been a
standing grievance, and the result of this long and terrible experience,
stretching through centuries both in Europe and America, had been to
inspire Americans with a fear of intrusting power to any man or body of
men. They sought to limit everything by written restrictions. Setting
aside the objection that such a system is mechanically vicious because
it involves excessive friction and therefore waste of energy, it is
obviously futile unless the written restrictions can be enforced, and
enforced in the spirit in which they are drawn. Hamilton, whose instinct
for law resembled genius, saw the difficulty and pointed out in the
_Federalist_ that it is not a writing which can give protection, but
only the intelligence and the sense of justice of the community itself.

"The truth is, that the general genius of a Government is all that can
be substantially relied upon for permanent effects. Particular
provisions, though not altogether useless, have far less virtue and
efficiency than are commonly ascribed to them; and the want of them will
never be, with men of sound discernment, a decisive objection to any
plan which exhibits the leading characters of a good Government." After
an experience of nearly a century and a quarter we must admit, I think,
that Hamilton was right. In the United States we have carried bills of
right and constitutional limitations to an extreme, and yet, I suppose
that few would care to maintain that, during the nineteenth century,
life and property were safer in America, or crime better dealt with,
than in England, France, or Germany. The contrary, indeed, I take to be
the truth, and I think one chief cause of this imperfection in the
administration of justice will be found to have been the operation of
the written Constitution. For, under the American system, the
Constitution, or fundamental law, is expounded by judges, and this
function, which, in essence, is political, has brought precisely that
quality of pressure on the bench which it has been the labor of a
hundred generations of our ancestors to remove. On the whole the result
has been not to elevate politics, but to lower the courts toward the
political level,