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CONSTITUTIONAL LAW.

CHAPTER I.

INTRODUCTION.

$ 1. The United States Constitution. --The adoption of the United States Constitution marked the opening of a new era in the World's legal history. Its underlying principle stands as the second great contribution by the Anglo-Saxon race to the progress of political science. The English statesmen of the thirteenth century did away with the seeming incompatability between free government and extended areas by the creation of representative legislative assemblies. It remained for their descendants in a new continent five centuries later to crown this work by proclaiming the principle that while in large countries ordinary legislation must of necessity be delegated to representatives of the people, the fundamental principles of government must be the work of the people themselves.

Such fundamental principles are contained in a constitution, and where the true principles of Constitutional law are appreciated, such principles must be beyond the reach of ordinary legislative enactments. “The security of a people against the misconduct of their rulers must lie in the frequent recurrence to first principles, and the imposition of adequate constitutional restrictions."'1 “Constitutional mandates are imperative,"? and

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“it is quite clear that legislation cannot abridge a constitutional privilege.'

From its nature the proper scope of a Constitution is confined to the fundamentals. “A Constitution, from its nature, deals in generals, not in detail. Its framers cannot perceive minute distinctions which arise in the progress of the nation, and therefore confine it to the establishment of broad and general principles. "A Constitution must necessarily be an instrument which enumerates rather than defines, the powers granted by it.”5

Within the limits of all the territory which owns the authority of the United States Government, the supreme law is the Constitution of the United States. The Federal Government is created by, and exists only in virtue of this instrument. The State governments, while older than this Constitution, and in certain respects independent of it, are still obliged to recognize it as the supreme law of the land, and to allow all matters concerning their relations with the central government to be regulated by its provisions. Over the territory belonging to the United States the authority of the Constitution is absolute.“ As the first successful national written Constitution, that of the United States has served as a model, during the past century, to the constitutional conventions of many countries. Before, however, treating further of the Constitution of the United States it is necessary to consider briefly the nature and origin of constitutions in general.

§ 2. Origin of the Name.—The use of the word constitution, in its Latin form of Constitutiones, dates back to the beginning of the Christian era. The early signification of the term differed widely, however, from the meaning attached to it at the present day. A new word was needed to designate those decrees of the Emperor which, during the reign of Augustus began to have the force of laws, for the purpose of distinguishing them from the laws passed by the comitia tribuna, councilium tributum plebis or other popular assemblies. To these decrees the term Constitutiones was applied.?

* Blatchford, J., in Counselman v. Hitchcock, 142 U. S. 585.

* Marshall, C. J., in U. S. Bank v. Deveaux, 5 Cranch, 87.

Grier, J., in Passenger Cases,

* Howard, 459.

• Certain portions of the Constitution are only applicable within the boundaries of the sever: 1 States.

During the middle ages we begin to find the word used in English law in a manner somewhat resembling the present use of the word "statute.” It seems, however, to have been reserved for laws of unusual importance; laws, for instance, which were to determine and limit the extent of power of certain bodies, courts or offices. The most famous historical illustration of this use of the word is to be found in the case of the Constitutions of Clarendon, a document of sixteen clauses, forced upon the Church by Henry II in 1164, which fixed the jurisdiction of the ecclesiastical courts of England.8

$ 3. Early American Constitutions. It is in America that we find the earliest instance of anything approaching to Constitutions in the most modern sense of the word. The Third

?" The generic name of constitutions embraces all the acts of the emperor, but they must be divided into three distinct classes: First, the general ordinances spontaneously promulgated by the emperor (edicta); second, the judgments rendered by him in cases which he decided in the tribunal (decreta); third, the acts addressed by him to various persons, as, for example, to his lieutenants in the provinces; to the inferior magistrates of the city; of the praetor, or proconsul, who interrogated him any doubtful point of law; to private individuals, who petitioned him in any circumstance whatever (mandata, epistalæ, rescripta). Of these constitutions some were general and had universal application; others were particular, and only bad reference to the cases and to the persons to whom they were addressed. But here two questions

require consideration: at what epoch did the imperial constitutions take their rise, and upon what authority were they based ?

"Some writers date their rise from the epoch of Adrian, on the ground that, before that time, the law appears to have been dependent entirely on plebiscita and senatus-consulata. The most ancient constitution which we meet with in Justinian's collection does in ef. fect belong to the time of Adrian, but everything goes to show, and it is generally agreed, that the origin of the constitution must be ascribed to an earlier period, even as far back as the time of Augustus.” Ortolan's History of Roman Law, Sec. 350 and 351.

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. For an account if the constitutions of Clarenden, see Pollock and Maitland's History of English Law, Vol. 1, page 104, 1st ed.

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