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Virginia Colonial Charter, dated July 21, 1621, was entitled "An Ordinance and Constitution of the Treasurer, Council and Company in England, for a Council of State and General Assembly."

The thirteen colonies, after the Declaration of Independence, began to apply this word, Constitution, to those instruments adopted by them, as the foundation for their governments. This use of the word was, however, still so much of an innovation that many of the colonies seem to have thought it necessary to explain it, even in the title itself; and so after the word Constitution, there follows the phrase "Or form (or system, or plan) of government." With the adoption of the Constitution of the United States (1787-88), the use of the word in its present meaning became established.

§ 4. Definition of a Constitution.-A definition of a Constitution in the modern sense of the word is a matter of some difficulty, mainly on account of the difference between existing Constitutions. A Constitution is a fundamental body of laws adopted by the sovereign power of the State, to serve as a foundation for its government." Authorities

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The following are among the definitions of constitutions, which have been given: "By the Constitution of a country is meant so much of its law as relates to the designation and form of the legislature, the rights and functions of the several parts of the legis lative body; the construction, office, and jurisdiction of courts of justice. The constitution is our principal division, section, or title, of the code of public laws, distinguished from the rest only by the superior importance of the subject of which it treats. '' Paley, Moral Philosophy, Book VI., Chap. VII.

،، What is a constitution ? It is the form of government delineated by the mighty hand of the people, in which certain first principles of

fundamental law are established. The constitution is certain and fixed; it contains the permanent will of the people, and is the su preme law of the land; it is paramount to the power of the legis lature, and can be revoked or altered only by the power that made it." Vanhorne v. Derrance, 2 Dallas, 304.

،، What is a constitution ? The constitution of an American state is the supreme, organized, and written will of the people acting in convention and assigning to the different departments of the gov ernment their respective powers. It may limit and control the action of these departments, or it may confer upon them any extent of power not incompatible with

and Constitutions are not agreed as to what should find a place therein. Three great subjects, however, always should be included: the structure of government, the devision of powers, and the bill of rights. The boundaries of the States are generally included, and a schedule is necessary when one Constitution is peacefully substituted for another. The tendency of modern Constitutions is to include much matter on the subject of administrative laws. It is impossible, however, to lay down any absolute rules as to what must be included or excluded. Any rule of law, to which the people of the State may attach a sufficient degree of importance. properly finds a place in its Constitution.

§ 5. Classification of Constitutions.-Constitutions are generally said to be either written or unwritten. Written Constitutions are also described as conventional or enacted Constitutions, and unwritten Constitutions as cumulative or evolved. A written, conventional or enacted Constitution is one which is adopted by the people of the country, at some definite time, and contained in some written instrument. Except so far as this is modified by amendments to the Constitution, a written Constitution is adopted at one time and contained in a single instrument. An unwritten, cumulative or evolved Constitution is one which has grown up by gradual evolution, which is not contained in any single instrument and is not entirely reduced to writing. The only unwritten Constitution in existence is that of England. It is doubtful if England has a Constitution. It would be more accurate, perhaps, to say that the term is applied to that part of the English law which concerns those subjects which properly find a place in Constitutions. The English Constitution was never spoken of as such until after the origin of written Constitutions. Two of the most prominent characteristics of other Constitutions are here entirely lacking. The laws which are

the federal compact. By an inspection and examination of all the constitutions of our own country they will be found to be nothing more than so many restric

tions and limitations upon the departments of the government and people." Taylor v. Governor, 1 Arkansas, 27.

spoken of as being part of her Constitution, were not adopted with any greater formalities than other laws, and no greater restrictions are placed on their repeal. The various provisions. of the English Constitution, if we are to use the term, have been adopted at many different periods and in various ways. In the forefront stand the three so-called great Charters of English liberty, the Magna Charta, the Petition of Rights, and the Bill of Rights. Beside these appear a group of the great statutes of England, such as the Habeas Corpus Act and the Act of Settlement. Much of the English Constitution, however, is only to be found among what are known as the Conventions of the Constitution. The supremacy of the House of Commons, the composition of the Ministry, nay, the very existence of the Ministry, is not mentioned in any English statute. These and many other of the most fundamental principles of English Government only originated by custom and are only enforced by general acquiescence. Furthermore, no act of the English Parliament can be held invalid because unconstitutional, and the result is that the English Constitution can be at any time altered by an ordinary act of Parliament. The foundation. of the English Constitution, if one exists, can only be found in the conservatism of the English people.

Another division of Constitutions, but one not requiring discussion, is that into monarchial and democratic, the former being one granted by an absolute ruler to his subjects, and the latter one adopted under the direct authority of the people.

§ 6. Federal and State Constitutions.—A more important distinction is the one which must be made between the Constitution of the United States and those of the several States. The Government of the United States is one of delegated powers, while those of the States are governments of residuary original sovereignty. The Government of the United States is one established by the joint action of the several States and the people of the several States, by their adoption of the United States Constitution. Within its sphere of operation, the Government of the United States is supreme, but the scope of such sphere is limited to the grants of the Constitution. Neither the United States Government, nor any department thereof, can exercise

any authority not affirmatively given to them, either expressly or by implication, by the Constitution.10 The governments of the States existed before the adoption of our Federal Constitution, which contained all the powers which the States consented to surrender to the National Government. All powers not thus surrendered remained with the States or the people. A State Constitution is, therefore, entirely one of restriction on its government as far as the question of its powers are concerned.11 There is no provision in any State Constitution similar to Section 8 or Article I of the United States Constitution, consisting of a list of powers granted to the legislative body. The State Legislatures have full general legislative power, except so far as it is prohibited to them or abridged by the Constitution of the United States and the Federal Statutes and Treaties made in pursuance thereof, or by the Constitution of the particular State.

§ 7. Law and History.-"The student of law in our times has come to recognize the fact that law is, in a sense, a branch of history, and is to be studied in a historic spirit and by a historic method; and as the student of law now recognizes the relation which exists between law and history, so also has the student of history come to recognize that a certain relation subsists between history and law."'12

Particularly is this statement true in the case of Constitutional law, that branch of the science which creates and limits the political functions of a government. Any attempt to understand or appreciate the Constitution of the United States without a previous study of its historical causes and development can only end in failure and error. Nor must this historical study be confined to the North American Continent. The germs of many of its provisions can be clearly traced back over the Atlantic, and in some instances even across the North Sea.

19 McCulloch Wheaton, 316. "Taylor v. Governor, 1 Arkansas, 27.

V. Maryland, 4

12 Professor Henry Wade Rogers in his "Introduction to a Course

of Lectures before the Political Science Association of the University of Michigan, upon the Constitutional History of the United States as seen in the Development of American Law."

§ 8. Plan of this book.-For the reasons given in the previous section the three following chapters have been given over to a treatment of the historical development of AngloSaxon political institutions in England,13 and in this country prior to the meeting of the Constitutional Convention, and to a brief summary of the work of that body.15

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In the last of these chapters the character of the problems confronting this convention can be seen. The main questions to be settled were those relating to the division of power, and to the elaborate systems of checks and balances created. First of all the convention was compelled to provide for the division of powers between the new Federal governments and the government of the States, and this fundamental division has been made the subject of the first strictly legal chapter in the book.1o Logically next in order comes the division of powers among the various departments of the Government of the United States," followed by the discussion of the organization and powers of each department, legislative,18 executive and judicial,20 in detail. Special subjects, not falling within the scope of the chapters already referred to, are treated of in the sixth concluding chapters of the work.

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