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works are easily accessible, and the scope of this work will permit only a few general suggestions with particular reference to our own history, some parts of which have not been considered in general articles on this subject. The student of history has not failed to notice the change in the use of the term "constitution" as applied to forms and powers of government, and the practical restriction of its use in modern times to the primary fundamental law of political society or of subordinate corporate or voluntary organizations. An illustration of the present use of the term by a nation which, coming out of a remote antiquity, has recently adopted a most progressive modern policy, is found in the constitution of Japan, which went into operation in 1889. The following preamble shows a curious mingling of inherited absolute power and popular rights:
“Having, by virtue of the glories of our ancestors, ascended the throne of a lineal succession unbroken for ages eternal, desiring to promote the welfare of, and to give development to the moral and intellectual faculties of, our beloved subjects, the very same that have been favored with the benevolent care and affectionate vigilance of our ancestors, and hoping to maintain the prosperity of the State, in concert with our people, and with their support, we hereby promulgate, in pursuance of our imperial rescript of the 12th day of the roth month of the 14th year of Meiji, a fundamental law of the State, to exhibit the principles by which we are to be guided in our conduct, and to point out what our descendants and our subjects and their descendants are forever to conform.
“The rights of sovereignty of the State we have inherited from our ancestors, and we shall bequeath them to our descendants. Neither we nor they shall in future fail to wield them in accordance with the provisions of the Constitution hereby granted. We now declare to respect
and protect the security of the rights and of the property of our people, and to secure to them the complete enjoyment of the same within the extent of the provisions of the present Constitution, and of the law."
Under the early Roman law the acts of the emperor were termed constitutions, and Mr. Hunter (Roman law, P. 76) says they included "edicts, general ordinances issued cy him in his capacity of magistrate; decrees, judicial decisions pronounced either on final appeal or in the exercise of his summary jurisdiction; epistulæ or rescripta, written replies to the inquiries of judges or of private persons on particular points; and mandata, orders to the imperial officers in the provinces.” Referring to the division of the law into two parts, written and unwritten, the same writer, p. 119, suggests that "its origin seems to flow from the institutions of two states, Athens and Sparta;" and he points out the interesting fact that "the Spartans preferred to commit to memory what they were to observe as statutes; but the Athenians guarded what they found enacted in their written statutes."
In the article on home rule in the preceding volume, I have quoted the provision of the Duke's Laws, 1665, authorizing the inhabitants of a town to establish "peculiar constitutions” relating to local affairs. Here the term is evidently used in the sense of ordinances, or by-laws. So in the Dongan charter of New York, April, 1686, the governing body of the city was authorized "to make laws, orders, ordinances, and constitutions" relating to city affairs; and the Albany charter, granted a few months later, contained the same provision. In the later history of the colony the term began to acquire its modern signification, and was applied to the form of government rather than to details of local administration, as indicated by the Duke's Law and the Dongan charters. While
the constitution of England is not written, it has a scope, character, and meaning as definite as an American written constitution. The English use of the term is apparent in one of the questions contained in an inquiry by the home government, addressed to the American colonies in 1773, asking information concerning various aspects of colonial affairs, and which included the question “What is the constitution of the government?" Governor Tryon, answering for New York, in June, 1774, referred to the original charters to the Duke of York, and the change from a proprietary to a royal government in consequence of the Duke's accession to the throne; and, proceeding further, said the colony had a governor appointed by the Crown, a council similar to the English privy council, and an assembly; pointing out particularly that, in executive affairs, the council was similar to the English privy council, and, as a part of the legislature, was similar to the House of Lords. I have already pointed out in a former chapter that the colonial council was the predecessor of the state senate. The Governor further said that the common law of England was considered the fundamental law of the province, and that English statutes of a general nature, passed before the colony had a legislature, were binding on the colony. The Governor then described the judicial system and other elements of local government. All these features of government described by Governor Tryon were, with modifications, subsequently included in the written Constitution of the state. The slow evolution in the use of the term "constitution” is indicated by the fact that the convention which framed the first Constitution of New York almost invariably called it a “form of government." The early resolutions relating to this subject refer to a form or frame of government, and not specifically to a constitution. Sometimes it is called a plan of government. But whatever its framers chose to
call it while deliberating upon it, the instrument took its place as one of the great political documents of that period, and became known as, as it was in fact, the Constitution of the state.
It is only natural that judges and writers on public affairs should attempt to define a constitution. If a definition is desired we need seek no higher authority than Judge Story, who, in his “Commentaries on the Constitution of the United States," vol. 1, $ 338, says that "the true view to be taken of our state Constitutions is that they are forms of government, ordained and established by the people in their original sovereign capacity, to promote their own happiness and permanently to secure their rights, property, independence, and common welfare." Bouvier (Law Dict. I, p. 335) defines a constitution as the fundamental law of a free country, which characterizes the organism of the country, and secures the rights of the citizen, and determines his main duties as a freeman. Judge Edwards, in McKoan v. Devries (1848) 3 Barb. 196, considering the object of a state constitution, says it is undoubtedly "to establish the fundamental permanent law of the state,-that law which is not to be left to ordinary legislation;" and he quotes the foregoing definition by Judge Story. He then observes that a "convention that establishes a constitution has all the powers which the people possess in their original sovereign capacity;" and it must be presumed that a constitutional provision was intended to be permanent and wholly beyond legislative control. A concise definition of the term is given by Judge Allen, in People v. New York C. R. Co. (1862) 24 N. Y. 485, who says that a “constitution is an instrument of government, made and adopted by the people for practical purposes connected with the common business and wants of human life.” Judge Johnson, in Newell v. People (1852) 7 N. Y. 97, says a constitution is the “most solemn and deliberate of all human writings,” ordaining “the fundamental law of states." "The Constitution is the voice of the people, speaking in their sovereign capacity.” Re New York Elev. R. Co. (1877) 70 N. Y. 327, 342.
The American and English constitutional systems were compared in People ex rel. Mathews v. Toynbee (1855) 20 Barb. 168, 194, affirmed in (1856) 13 N. Y. 378, where it is said that “the provisions of the great charter and the acts of later times for the protection of life, liberty, and property are statutory regulations which Parliament may repeal or modify at pleasure. They are limita
tions upon the power of the Crown, and not upon that of Parliament. ... We have incorporated the prohibitions of the English statutes for the protection of life, liberty, and property into our Constitution, not as limitations upon executive authority, but as limitations upon legislative power. The same unrestrained dominion over property which the Parliament and people of Great Britain have denied to the Crown, and reserved to Parliament, the people of the state of New York have denied to the legislature, and reserved to themselves."
"The Constitution is the basis upon which rests that complicated social organization called the State." People v. Rathbone (1895) 145 N. Y. 434, 438, 28 L. R. A. 384, 40 N. E. 395.
“The object of a written constitution is to regulate, define, and limit the powers of government by assigning to the executive, legislative, and judicial branches distinct and independent powers. The safety of free government rests upon the independence of each branch, and the even balance of power between the three. Unite any two of them and they will absorb the third with absolute power as a result. Weaken any one of them by making it unduly dependent upon another and a tendency toward the same evil follows." People ex rel. Burby v. Howland (1898) 155 N. Y. 270, 41 L. R. A. 838, 49 N. E. 775.
Discussing the provision that a person shall not be compelled to be a witness against himself, Judge Denio, in People es rel. Hackley v. Kelly (1861) 24 N. Y. 74, makes an important observation on the general scope and purpose of a constitution. He says: “Constitutional provisions are not leveled solely at the evils most current at the times in which they are adopted, but, while embracing these, they look to the history of the abuses of political society in times past, and in other countries, and endeavor to form a system which shall protect the members of the state against those acts of oppression and misgovernment which unrestrained political or judicial power are, always and everywhere, most apt to fall into."
Adoption of constitution.-An amendment is deemed adopted when it becomes a part of the constitution. People v. Norton (1871) 59 Barb. 169. This case involved the effect of a vote approving an amendment and the canvass and certification of the result by the state board of canvassers. See also Real v. People (1870) 42 N. Y. 270. The Constitution of 1894, art. 14, § 1, following the rule established in 1874, definitely prescribes the time when an amendment shall take effect.
Amended constitution.-An amended constitution must be read as