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plies the term 'flexible,' while constitutions of the second and third classes, which are superior to the ordinary law-making power and not capable of amendment except by the higher authority which created them, he describes as 'rigid' constitutions.

It is obvious that the authority of a self-imposed constitution differs widely from that of a true fundamental law, which underlies the ordinary processes of government and by which a political society has chosen to limit or has been constrained to restrict its governmental agencies. In a legal sense, therefore, the real distinction between constitutions does not turn upon the ease or difficulty with which they can be altered, nor yet upon the fact that the established process for amending a constitutional provision differs from the ordinary processes of legislation, but in the fact that a constitution of the one type is a part of the ordinary law of the land, and that a constitution of the other type is superior to the ordinary law; that in the one case legislation is irresponsible and uncontrollable, while in the other it is controlled by the fundamental law. In a State having a constitution of the one sort we shall expect to find a court or other independent representative of the sovereign power from which the Constitution was derived, which shall protect it from encroachments on the part of the ordinary law-making power; in a State of the other sort, we shall look to see the governing authority of the State unfettered by any external authority -itself the supreme representative of the sovereignty of the State.

Ordinary Constitutions.-The Constitution of Great Britain affords the best modern example of the nature and operation of an ordinary constitution; that of the United States, the best example of an extraordinary, or supreme, constitution. The British Constitution is an indefinite body of legal rules and principles, partly customary, partly the result of judicial decisions, and partly made up of acts of Parliament. These are nowhere collected in one place, but must be extracted from the whole body of the common and statute law of the realm and from observation of the workings of the Government. Any act of Parliament and any judicial decision may modify it, and not infrequently statutes have been passed which have contained both constitutional and ordinary legislation mingled together in one and the same paragraph. Not only is there no authoritative statement of the British Constitution to be found, but, from its very nature, no such statement could be made. So much of it depends upon custom and so much is left to time and circumstance, that the most precise definition of its terms would be the most misleading. No law, statutory or judicial, has created the Cabinet, to which, as the executive committee of the House of Commons, the government of the Empire is at present committed; but whether it is really the Cabinet, or a committee of the Cabinet, or the Prime Minister, that governs England, is so much a question of personality and of circumstances that it defies answer. So no one can say whether the Crown still retains the ancient prerogative of vetoing an act of Parliament. It is commonly assumed that the power is extinct. The only safe statement that could be made, however, would be that the right has not been exercised for nearly two hundred years, and that only a grave emergency would justify the

sovereign in employing it; and if this should occur, there is no lawful process by which the act, however repugnant to current ideas of government in England, could be declared unconstitutional or deprived of its legal effect. Under such a system the Constitution would sanction any governmental act which could be performed without precipitating a revolution.

The latest English writers distinguish between the law and the custom of the Constitution, the former having reference to certain statutory provisions-such as the act settling the succession to the crown, the bill of rights, etc.-which, being laws in the strictest sense of the term and tending to limit the authority of a single branch of the Government and not the supremacy of Parliament, are capable of enforcement by the courts; and the latter, to the great body of customary rules and observances which in practice control the working of the Government and the distribution of its powers, but are enforced only by public opinion and by respect for the settled order of the Constitution. The latter are not true laws, as they lack the sanction of any legal authority to declare and enforce them. In the field of ordinary jurisprudence no such distinction as this can be drawn between custom and law. There custom is law, and will be enforced as such. But the case is manifestly different in the sphere of constitutional law, for there a custom tending to restrict the action of the sovereign power can find no jurisdiction to enforce it.

A constitution of the ordinary legal type may belong to either of the two old categories of 'written' and 'unwritten' constitutions-an unwritten constitution being one which is wholly or largely based on custom or judicial decisions, and a written constitution being the result of a specific act of legislation and having the definite form and the certainty of a body of statute law. But the distinction, though sound enough, is of no practical importance, as no considerations of political philosophy or of legal validity are involved in it. In fact, every political constitution is a composite of common and statute law, of custom and of legislation, and the validity of its several provisions is not in the least dependent upon the manner in which the principles which they embody have acquired the form and content of legal authority. The British Constitution, for example, is much more than a body of customary law. At least five important sources of the rules and principles which it embodies may be distinguished. These are: (1) Two principal treaties, the Act of Union with Scotland in 1707 and the Act of Union with Ireland in 1800. (2) Certain great 'compacts,' viz. Magna Charta, in 1215, the Declaration of Right, in 1689, and the Act of Settlement, in 1701. (3) A large number of public acts of Parliament, ranging from matters of the greatest to those of the least political importance. (4) The body of precedents and customs known as the common law. (5) The usages and practices known specifically as the customs of the Constitution, which are in reality the mass of practical expedients and understandings by which government is mainly carried on. To these last we have denied the character of law, partly because of their indefiniteness and fluctuation, but more particularly because of their lack of a legal sanction. The fourth class consists of legal rules in the proper sense of the term, but of the sort contemplated by the use of the word unwritten;

but nevertheless, if formal treaties and acts of Parliament are written law, then is the British Constitution, in part at least, a written constituLion. Some constitutions of the ordinary type, however, are of the strictly 'written' sort, being the result of a single legislative act or a grant of power from the sovereign head of the State. Most of the constitutions which have been promulgated in the several States of Continental Europe, as well as that of Japan, are of this character. They have the common characteristic of the lack of any superior sanction. A law enacted by the ordinary legislative authority and promulgated by the supreme executive power of the State is a law, whether sanctioned by the Constitution or not. In other words, a law may be unconstitutional and yet valid.

Extraordinary Constitutions. As the polity of the British Empire furnishes the best example of the ordinary, flexible,' and unwritten constitution, so does the fundamental law of the United States exhibit the best and most characteristic constitution of the opposite type of the extraordinary, or supreme, and 'rigid' form. Though the constitutions of the General Government and of the several States have very great and even fundamental differences, they are all alike in this respect, that the organic law has a sanction superior to that of the ordinary law of the land; that the Constitution is in fact the supreme law' to which the ordinary law must conform; that the sovereignty is not wholly committed to the ordinary agencies of government, but the power of these is limited, and that this limitation on legislative and executive action is not a mere form of words, but is rendered effective by the power vested in the courts of annulling acts of government in contravention of the supreme law. The Federal Government and the governments of the States are, therefore, not sovereign, but legally limited corporations, strictly analogous to private and minor municipal corporations, which derive a limited authority from the State which created them. There is nothing singular in the power exercised by the courts in declaring a corporate act invalid because of its transcending the legal authority of the body performing it, even in the political sphere. It is plain that the political action of a colony, even of the 'self-governing' type, and of dependent States, as well as of cities and towns, is subject to control by the dominant political authority. The British Parliament and the English courts exercised this authority over the American colonies as they now exercise it over Canada and Australia. The novelty of the American system consists in the application of this familiar principle to independent and sovereign States. The right of the Supreme Court of the United States, and even of the ordinary Federal tribunals, to pass upon the validity of acts of the National Congress was long disputed, but it was asserted by the Supreme Court as early as 1797, and actually exercised in the celebrated case of Marbury vs. Madison in 1803. This conclusion was so plainly sound, and so obviously necessary to the working of the American constitutional scheme, that it has been generally acquiesced in. Several of the State courts had in the meantime reached a similar decision as to their authority to nullify acts of their own legislatures when in conflict with the local Constitution or with that of the United States, and the prin

ciple may now be regarded as an essential part of the constitutional system of the United States. See SUPREME Court of THE UNITED STATES.

There is one important difference between the fundamental law of the United States and that of the several States. The National Government being a federal union of independent commonwealths-some of them existing before its formation and others having come into the Union as independent States--the National Constitution is simply a grant of powers from the latter to the former, while the Ŝtate constitutions are merely limitations upon the power of the ordinary agencies of government of the States. From this it follows that the Federal Government has no powers excepting such as are conferred by the Constitution to which it owes its existence, while the State governments, on the contrary, have vested in them the full sovereignty of the commonwealth, excepting as this is limited by the local Constitution and that of the United States. The function of the courts of the United States and of the several States in interpreting their respective constitutions is very different therefore. An act of Congress is invalid if it transcends the powers conferred upon the legislative branch of the Government by the fundamental law; whereas, an act of the Legislature can be impeached for unconstitutionality only if it is in contravention of one of the limits placed by the Constitution on legislative power.

In general, constitutions may be amended, altered, or abrogated by the same power which created them, or by a process provided in the fundamental law for that purpose. A constitution which is the free gift of the sovereign authority may be recalled or nullified by the authority that conferred it. A rigid constitution of the American type, which is the creation of the people, and which cannot be directly changed without their concurrence, has in practice been found to be of the most inflexible kind. For a period of more than sixty years after the adoption in 1803 of the Twelfth Amendment (relative to the election of President and Vice-President) the Constitution of the United States did not suffer a single amendment, and the three amendments adopted at the close of the Civil War, and as the result thereof, have been the only changes which it has since sustained. Like the English Constitution, however, it has changed greatly, though imperceptibly, by the insidious processes of custom and of judicial interpretation. The history and language of the instrument, and the nature of the changes which it has undergone, will be set forth in the article on the CONSTITUTION OF THE UNITED STATES. See also GOVERNMENT; STATE; SOVEREIGNTY; GREAT BRITAIN; and the titles of other States concerning whose constitutions in; formation is sought.

Consult: Bryce, The American Commonwealth (3d ed., London and New York, 1895) and Studies in History and Jurisprudence (London and New York, 1901); Burgess, Political Science and Comparative Constitutional Law (Boston, 1900); Anson, Law and Custom of the Constitution, part i. (7th ed., Oxford, 1893), part ii. (2d ed., 1896); Dicey, Lectures Introductory to the Study of the Law of the English Constitution (4th ed., London, 1893); Bagehot, The English Constitution (new ed., London, 1896); McClain, Constitutional Law in the United States (New York, 1905); Cooley, Treatise on the Constitu

tional Limitations which rest upon the Legisla tive Power of the States (Boston, any edition). Consult also the historical works referred to under the various titles UNITED STATES; GREAT BRITAIN, etc.

CONSTITUTION, THE. A forty-four-gun frigate, the most famous vessel in the history of the United States Navy, sometimes called Old Ironsides, from the hardness of her planking and timbers. She was launched on October 21, 1797, but was not completed and equipped until the following year, when she put to sea under Captain Nicholson for service against the French. During the war with Tripoli, 1801-05 (see BARBARY POWERS, WARS WITH), she was Preble's flagship, and in 1805 took part in three of the five bombardments of the port of Tripoli. In July, 1812, in command of Isaac Hull (q.v.), she escaped from a British squadron off the New Jersey coast, after a spirited chase of three days, and on August 19, off Cape Race, fought her famous battle with the Guerrière, Captain Dacres, a somewhat weaker English frigate, which she left a total wreck after an engagement of thirty minutes, the English losing 79 of their crew, the Americans 14. On December 29, under the command of Captain Bainbridge, she captured off Bahia, Brazil, the Java (38 guns, Cap tain Lambert), after a two hours' engagement, in which the British lost 300 in killed and wounded, the Americans 34. On February 14, 1814, under Captain Stewart, she captured the Picton, 16 guns, and a convoy, in the West Indies; and on February 20, 1815. she took the Cyane, 34 guns, and the Levant, 18 guns, after a fierce engagement-remarkable for the seamanship of the Americans and the gallantry of the English-between the Madeira Islands and Gibraltar. The English lost 19 killed and 42 wounded out of 320; the Americans, 6 killed and 9 wounded out of 451. Soon afterwards the Constitution was closely pursued by a British squadron, which recaptured the Levant. Reported unseaworthy between 1828 and 1830, she was ordered to be dismantled, but was retained in deference to the popular sentiment aroused by Holmes's poem “Old Ironsides,” and in 1833 was rebuilt. She went out of commission in 1855 at Portsmouth, N. H., was subsequently used as a training ship, was again partially rebuilt in 1877, crossed the Atlantic for the last time in 1878, and was stored at the Boston Navy Yard in 1897. Consult: Hollis, The Frigate Constitution (Boston, 1900); Roosevelt, The Naval War of 1812 (New York, 1882); and Barnes, Naval Actions of the War of 1812 (New York, 1896).

CONSTITUTION, CHEMICAL. See CHEMISTRY; CARBON COMPOUNDS; STEREOCHEMISTRY. CONSTITUTIONAL LAW. In general, that branch of public law which deals with the nature and organization of government, the distribution and mode of exercising the sovereign powers of the State, and the relations of the Government to those who are subject to its authority. It has nothing to do with the regulation of the external relations of a State with other States, these being governed by international law, though the agencies for maintaining those relations, and the deterrination of their character and form. may be included within the constitutional law of the State. Thus, the choice of ambassadors, as well as their rank and functions, being the direct

VOL. V.-22.

concern of the State they are chosen to represent, is governed by its constitutional law, and so, in the United States, is the power exercised by the Senate in approving, amending, or rejecting treaties with foreign powers.

Again, where the States are not related to one another as independent political communities, but sustain a relation of superior and dependent States, as of a colony to the parent State, or a subject to a dominant State, or of a member of a federation of States to the central authority, such relations are matters not of international, but of constitutional law. Thus, the Acts of Union of

England with Scotland and Ireland, the acts of the British Parliament incorporating the Domintralia, the various acts of Congress providing for the government of Porto Rico, Hawaii, and the several Territories of the United States, the provisions of the American Constitution determining and the individual States-all these are as much affected by them as are their Bills of Rights, or a part of the constitutional law of the States the laws and customs determining the powers of their respective legislatures.

ion of Canada and the Commonwealth of Aus

the relations between the General Government

On the other hand, two political communities and may yet in some respects remain foreign to may be for some purposes constitutionally related

one another. Thus, while the relations of the several States of the American Commonwealth to the central authority, and, through that authority to one another, are governed by their constitutional law, they are yet for many purposes independent of one another, and, in so far as they are independent, their relations are matters of international and not of constitutional law.

Specifically, the constitutional law of a State consists of its Constitution, or so much of it as is legally effective, together with the constructions and interpretations which it has received at the hands of the courts or other competent authority.

BRITISH CONSTITUTIONAL LAW. Under a flexible constitution like that of England, which is mainly the result of the accumulated experience of ages, the principal function of constitutional law is to discriminate between those portions of the Constitution which are law, in the strict sense of the term, i.e. which have a legal sanction and will be declared by the courts, and those that rest only upon the customs of the community and upon considerations of practical expediency. These last, which are known as the 'custom of the Constitution,' may have a moral sanction which makes them for the time being as effective politically as the law of the Constitution. But, being legally ineffective, i.e. unenforceable by the au thority of the State, they do not, strictly speaking, belong in the category of constitutional law. As a considerable part of the British Constitution is made up of such customs and practical expedients, the range of law comprised within it is comparatively narrow. It is to be remembered, however, that though custom, in and by itself considered, is not a part of constitutional law, it may become a source of such law by being adopted by the courts and declared in judicial decisions. More than one of the so-called liberties of the subject in England have thus arisen and now form part of the common law of the land. It is to be observed, also, that in Great Britain constitutional law does not exist as a

separate and distinct body of rules and precedents, its provisions being an integral part of the common and statute law of the realm, from which they are to be collected.

AMERICAN CONSTITUTIONAL LAW. In a State which has a constitution of the 'fixed' or statutory type, like the United States, much less is left to convention and understanding, and much less depends upon custom and expediency. The area of law under such a constitution is, therefore, much wider, while the task of the constitutional lawyer is much simpler. The constitutional law of such a State consists of the terms of the Constitution itself, with the amendments thereto, and the judicial decisions in which its provisions have come up for construction and application. No acts of the legislature declaring the rights of the citizen, no treaty with a foreign government, no abdication of power by any arm of the State, enters into it. In the American system the only authoritative exposition of a constitution is that afforded by the courts. This extraordinary jurisdiction is not confined to the Supreme Court, but is exercised as well by the inferior Federal courts and by the regular tribunals of the several States. As constitutional law, the judgments of these courts vary according to the Constitution whose provisions are under examination. The Supreme Court of the United States is the final authority on the Federal Constitution, and the supreme appellate courts of the several States on the constitutions of their respective States.

It will be borne in mind that the judicial power in the United States extends to acts of Congress and of the legislatures, the Constitution being the supreme law to which all legislation must conform; whereas, the British Constitution, not being a supreme law, but a part of the ordinary aw of the land, the powers of Parliament are not and cannot be limited by it. Accordingly judicial decisions upon the legislative power and its limitations, which constitute the bulk of constitutional law in the United States, are wholly unknown in England.

This, indeed, is the leading principle of American constitutional law-that all acts of government, whether legislative, judicial, or administrative, made or done in contravention of the Constitution, are void. This principle is equally applicable to the constitutions of the several States and to that of the United States. But the Federal Government being one of strictly limited powers, a still more stringent principle is applied to test the validity of its acts-namely, that they are void if not specially sanctioned by the fundamental law. But it does not lie within the competence of the courts to control the action of the State on any other principles than such as are laid down in the fundamental law. They cannot declare void an act within the general competence of the legislative powers, merely because it is contrary to natural justice, or because it violates fundamental principles of republican government, or because of a supposed conflict with the general spirit of the Constitution. It should be added that an act adjudged to be unconstitutional is held to have been void and without legal validity from the time of its enact

ment.

In the article CONSTITUTION (q.v.), reference is made to certain changes which the Constitution of the United States has undergone as the result

of judicial interpretation and the slow growth of custom. The former of these is clearly a part of constitutional law, but it is not easy to say how far a particular custom, if threatened with violation, would be supported by the courts. It seems probable, however, that the Supreme Court would not hesitate to recognize a well-established practice of the Government as a part of the constitutional law of the land. If, for example, a Presidential elector should at the present time assert his right to disregard the instructions under which he was chosen and cast his vote for the candidate of the opposing party, there is at least a question whether he could not be restrained by the courts from carrying his intention into effect. See CONSTITUTION OF THE UNITED STATES; LAW; PUBLIC LAW. Consult: Boutmy, The English Constitution (London and New York, 1891); Story, Commentaries on the Constitution of the United States (5th ed., Boston, 1891); McClain, Constitutional Law in the United States (New York, 1905).

CONSTITUTIONAL UNION PARTY. A

party, formed chiefly out of the remnants of the convention at Baltimore in May, 1860, and nomiKnow-Nothing and Whig parties, which met in nated John Bell (q.v.) and Edward Everett ively, on a platform which declared simply for (qv.), for President and Vice-President, respect"the Constitution of the country, the union of the States, and the enforcement of the laws." The party carried Virginia, Kentucky, and Tennessee, and cast a popular vote of about 600,000, and an electoral vote of 39, in the ensuing election. After this campaign the party virtually went out of existence. It was also known as the 'Bell-Everett party.'

CONSTITUTION OF MATTER. See MATTER, PROPERTIES OF.

CONSTITUTION OF THE UNITED STATES. The Federal Constitution of the United States of America is one of the class of 'written' and 'rigid' constitutions, and the most important example of a constitution of the 'supreme' or 'extraordinary' type. That is to say, it is not only the result of a definite purpose and of a deliberate act of legislation, embodied in written form; it is not only incapable of modification by ordinary legislative processes; but it is the true supreme law of the land, to which all other law must conform, and conformity to it is the test of the validity of the ordinary law. The commanding quality of the Federal Constitution is the fact that it is not, like most political constitutions, including those of the several States of the American Union, a mere restriction upon the authority of the governing powers of the State, but that it creates a new frame of government, which it endows with certain limited powers, and from which it deliberately withholds all powers not so granted. The government so constituted by it is, therefore, a government of granted, and not of antecedent authority, and the Constitution is not only the supreme law of the land, but comprehends within itself the whole of that law.

There is some confusion, therefore, in the use of such phrases as the 'territorial extent,' 'the Constitution follows the flag,' and whether the Constitution 'applies' to certain newly acquired Territories. Strictly speaking. the Constitution has no territorial extension; it neither expands

nor contracts with the limits of American jurisdiction; but, whatever those limits may be, it steadily and invariably binds the governmental agencies of the nation and limits their authority. In so far as it confers general powers of government on the President and Congress, those powers may be exercised in the ends of the earth as well as within the limits of the original States; whereas, the restrictions upon that power are equally valid, wherever it may be exercised.

This view of the Federal Constitution, as a carefully guarded grant of powers to the Central Government, explains even those guarantees of personal liberty and security which it contains and which are commonly referred to as the Bill of Rights of the Constitution (Amendments I.-X.). These are not, as they are commonly understood, an unlimited charter of liberties for the people of the United States, but only restrictions upon the exercise of arbitrary power by the President and Congress. They are not aimed at the States or at local authority. It is announced as "a settled rule of construction of the national Constitution, that the limitations it imposes upon the powers of government are in all cases to be understood as limitations upon the government of the Union only, except where the States are expressly mentioned" (Cooley, Constitutional Limitations, p. 19). Accordingly, even such a right as that of trial by jury in criminal cases, which is usually regarded as one of the inalienable rights of the American citizen, is by the Federal Constitution protected only against violation by Congress and the Federal judiciary. Excepting as they are restrained by their own constitutions, there is nothing to prevent the several States from abolishing the jury system entirely.

From what has been said above it will be observed that the Constitution of the United States is not, as it is conceived by foreigners, a complete scheme of government for the people of the United States, but only a part, and that the smaller part, of such a scheme. To fill out the outline, the constitutions and laws of the several States must be taken into account. These provide by far the greater part of the machinery of government, the securities of life, liberty, and property, and the political rights of the citizen.

The Constitution of the United States, in the form in which it is reprinted in this article, represents a long process of experiment and discussion, in the course of which the jealousies and conflicting interests of the different States and sections of which the Union was made up, were gradually compromised and subordinated to the common welfare of all. The Articles of Confederation, by which the ill-jointed union of the thirteen original States was held together from 1779 to 1789, can scarcely be described as a constitution. in any proper sense of that term, as they created only the form and not the substance of government, and vested no real authority in the common representatives of the several commonwealths. They were more in the nature of a treaty of alliance, by which the States bound themselves to common action, and the Congress constituted by them an international conference for promoting the common welfare. The inconveniences and dangers of this arrangement speedily became too pressing to be ignored, and in February, 1787, Congress took such action as its limited powers permitted, and passed a resolution, suggesting that a convention of delegates from the several

States be held at Philadelphia on the second Monday of May following, "for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several State legislatures such alterations and provisions therein as shall, when agreed to by Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of government, and the preservation of the Union."

Pursuant to this resolution of Congress, delegates from twelve of the thirteen States (Rhode Island alone being unrepresented) assembled at Philadelphia, the convention opening its sessions in Independence Hall on May 14, 1787, under the Presidency of George Washington. For four months the delegates carried on the great work which had been intrusted to them, and at the close of their deliberations, on September 17, 1787, they had completed the Constitution of the United States, with the exception of the amendments, in the form in which we have it to-day. Their work was promptly approved by Congress, and at the close of the year 1788 had been adopted by eleven of the States and went into operation between them. The two remaining States, North Carolina and Rhode Island, ratified it and entered into the American Union in 1789 and 1790, respectively.

These results were not achieved without difficulty-in the face of profound differences of opinion. In most of the States the ratification of the Constitution was secured by narrow majori ties, and after prolonged and earnest discussion, and in none of the States was it approved with anything approaching unanimity. This opposition and these differences of opinion were primarily due to what have been called the compromises of the Constitution.' These were three in number. The first dealt with the fundamental conflict between those who desired a strong central authority and those who feared the extension of executive power. This was com promised by investing the President of the Republic with great powers, but for a limited term only, and by a complicated system of 'checks and balances,' whereby the exercise of his power was at divers points and in various ways subjected to the control of Congress or of the Senate.

The second compromise was of the conflict of the great and small States, the former claiming the weight in the National Government to which their size, wealth, and population entitled them, and the latter insisting upon the recognition of their equality as independent, self-governing commonwealths. This was effected by the institution of two chambers of legislation, a Senate, in which the States were to have equal representation, and a House of Representatives, in which the representation should be in proportion to population. This compromise involved also the delicate question of the distribution of power between the two Houses of Congress.

The third compromise was of the controversy between the upholders of slavery and those who believed that slavery should be restricted or abolished. This was adjusted by the proviso forbidding Congress to prohibit the importation or migration of slaves before the year 1808 (Art. I., Sec. 9), and the requirement that fugitive slaves should be delivered up by the States in which they had taken refuge (Art. IV., Sec. 2). As no power was conferred upon Congress or the President to

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