principle has prevailed in the administration of its government, until it has become an understood part of its system, to which obedience is expected and habitually yielded; like the hereditary principle in most monarchies, and the custom of choosing the chieftain by the body of the people, which prevails among some barbarous tribes. But the term constitutional government is applied only to those whose fundamental rules or maxims not only locate the sovereign power in individuals or bodies designated or chosen in some prescribed manner, but also define the limits of its exercise so as to protect individual rights, and shield them. against the assumption of arbitrary power. The number of these is not great, and the protection they afford to individual rights is far from being uniform.2

In American constitutional law, the word constitution is used in a restricted sense, as implying the written instrument agreed upon by the people of the Union, or of any one of the States, as the absolute rule of action and decision for all departments and officers of the government, in respect to all the points covered by it, which must control until it shall be changed by the authority which established it, and in opposition to which any act or regulation of any such department or officer, or even of the people themselves, will be altogether void.

The term unconstitutional law must have different meanings in different States, according as the powers of sovereignty are or are not possessed by the individual or body which exercises the powers of ordinary legislation. Where the law-making department of a State is restricted in its powers by a written fundamental law, as in the American States, we understand by unconstitutional law one which, being opposed to the fundamental law, is therefore in excess of legislative authority, and void. Indeed, the term unconstitutional law, as employed in American jurisprudence, is a misnomer, and implies a contradiction; that enactment which is opposed to the Constitution being in fact no law at all. But where, by the theory of the government, the exercise of

1 Calhoun's Disquisition on Government, Works, I. p. 11.

2 Absolute monarchs, under a pressure of necessity, or to win the favor of their people, sometimes grant them what is called a constitution; but this, so long as the power of the monarch is recognized as supreme, can be no more than his promise that he will observe its provisions, and conduct the government accordingly. The mere grant of a constitution does not make the government

a constitutional government, until the monarch is deprived of power to set it aside at will. The grant of Magna Charta did not make the English a constitutional monarchy; it was only after repeated violations and confirmations of that instrument, and when a further disregard of its provisions had become dangerous to the Crown, that fundamental rights could be said to have constitu tional guaranties, and the government to be constitutional.

complete sovereignty is vested in the same individual or body which enacts the ordinary laws, any enactment, being an exercise of power by the sovereign authority, must be obligatory, and, if it varies from or conflicts with any existing constitutional principle, it must have the effect to modify or abrogate such principle, instead of being nullified by it. This must be so in Great Britain with every law not in harmony with pre-existing constitutional principles; since, by the theory of its government, Parliament exercises sovereign authority, and may even change the constitution at any time, as in many instances it has done, by declaring its will to that effect. And when thus the power to control and modify the constitution resides in the ordinary law-making power of the State, the term unconstitutional law can mean no more than this; a law which, being opposed to the settled maxims upon which the government has habitually been conducted, ought not to be, or to have been, adopted. It follows, therefore, that in Great Britain constitutional questions are for the most part to be discussed before the people or the Parliament, since the declared will of the Parliament is the final law; but in America, after a constitutional question has been passed upon by the legislature, there is generally a right of appeal to the courts when it is attempted to put the will of the legislature in force. For the will of the people, as declared in the Constitution, is the final law; and the will of the legislature is law only when it is in harmony with, or at least is not opposed to, that controlling instrument which governs the legislative body equally with the private citizen.3

1 1 Black. Com. 161; De Tocqueville, Democracy in America, c. 6; Broom, Const. Law, 795; Fischel, English Constitution, b. 7, c. 5. In the Dominion of Canada, where the powers of sovereignty are confided for exercise, in part to the Dominion Parliament and in part to the Provincial Parliaments, with a superintending authority over all in the imperial government, the term unconstitutional law has a meaning corresponding to its use in the United States. Severn v. Re

gina, 2 Sup. Ct. R. (Ont.) 70; Leprohn v. Ottawa, 2 App. R. 522.

2 Mr. Austin, in his Province of Juris prudence, Lec. VI., explains and enlarges upon this idea, and gives illustrations to show that in England, and indeed under most governments, a rule prescribed by the law-making authority may be unconstitutional, and yet legal and obliga tory.

8 See Chapter VII. post.

CHAPTER II.

THE CONSTITUTION OF THE UNITED STATES.

THE government of the United States is the existing representative of the national government which has always in some form existed over the American States. Before the Revolution, the powers of government, which were exercised over all the colonies in common, were so exercised as pertaining either to the Crown of Great Britain or to the Parliament; but the extent of those powers, and how far vested in the Crown and how far in the Parliament, were questions never definitely settled, and which constituted subjects of dispute between the mother country and the people of the colonies, finally resulting in hostilities.1 That the power over peace and war, the general direction of commercial intercourse with other nations, and the general control of such subjects as fall within the province of international law, were vested in the home government, and that the colonics were not, therefore, sovereign States in the full and proper sense of that term, were propositions never seriously disputed in America, and indeed were often formally conceded; and the disputes related to questions as to what were or were not matters of internal regulation, the control of which the colonists insisted should be left exclusively to themselves.

Besides the tie uniting the several colonies through the Crown of Great Britain, there had always been a strong tendency to a more intimate and voluntary union, whenever circumstances of danger threatened them; and this tendency led to the New England Confederacy of 1643, to the temporary Congress of 1690, to the plan of union agreed upon in Convention of 1754, but rejected by the Colonies as well as the Crown, to the Stamp Act Congress of 1765, and finally to the Continental Congress of 1774. When the difficulties with Great Britain culminated in actual war, the Congress of 1775 assumed to itself those powers of external control which before had been conceded to the Crown

11 Pitkin's Hist. U. S. c. 6; Life and Works of John Adams, Vol. I. pp. 122, 161; Vol. II. p. 311; Works of Jefferson, Vol. IX. p. 294; 2 Marshall's Washing ton, c. 2; Declaration of Rights by

Colonial Congress of 1765; Ramsay's Revolution in South Carolina, pp. 6-11; 5 Bancroft's U. S. c. 18; 1 Webster's Works, 128; Von Holst, Const. Hist. 1; Story on Const. § 183 et seq.

or to the Parliament, together with such other powers of sovereignty as it seemed essential a general government should exercise, and thus became the national government of the United Colonies. By this body, war was conducted, independence declared, treaties formed, and admiralty jurisdiction exercised. It is evident, therefore, that the States, though declared to be "sovereign and independent," were never strictly so in their individual character, but were always, in respect to the higher powers of sovereignty, subject to the control of a central authority, and were never separately known as members of the family of nations. The Declaration of Independence made them sovereign and independent States, by altogether abolishing the foreign jurisdiction, and substituting a national government of their own creation.

But while national powers were assumed by and conceded to the Congress of 1775-76, that body was nevertheless strictly revolutionary in its character, and, like all revolutionary bodies, its

1 "All the country now possessed by the United States was [prior to the Revolution] a part of the dominions appertaining to the Crown of Great Britain. Every acre of land in this country was then held, mediately or immediately, by grants from that Crown. All the people of this country were then subjects of the King of Great Britain, and owed allegiance to him; and all the civil authority then existing or exercised here flowed from the head of the British empire. They were in a strict sense fellow-subjects, and in a variety of respects one people. When the Revolution commenced, the patriots did not assert that only the same affinity and social connection subsisted between the people of the colonies, which subsisted between the people of Gaul, Britain, and Spain, while Roman provinces, namely, only that affinity and social connection which result from the mere circumstance of being governed by one prince; different ideas prevailed, and gave occasion to the Congress of 1774 and 1775.

"The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions and other temporary arrangements. From the Crown of Great Britain the sovereignty of their country passed to the people of it; and

it was not then an uncommon opinion that the unappropriated lands which belonged to the Crown passed, not to the people of the colony or State within whose limits they were situated, but to the whole people. On whatever principles this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the Revolution, combined with local convenience and considerations; the people, nevertheless, continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly. Afterwards, in the hurry of the war, and in the warmth of mutual confidence, they made a confederation of the States the basis of a general government. Experience disappointed the expectations they had formed from it; and then the people, in their collective capacity established the present Constitution." Per Jay, Ch. J., in Chisholm v. Georgia, 2 Dall. 419, 470. See this point forcibly put and elaborated by Mr. A. J. Dallas, in his Life and Writings by G. M. Dallas, 200-207. Also in Texas. White, 7 Wall. 724. Professor Von Holst, in his Constitutional History of the United States, c. 1, presents the same view clearly and fully. Compare Hurd, Theory of National Existence, 125.

authority was undefined, and could be limited only, first, by instructions to individual delegates by the States choosing them; second, by the will of the Congress; and third, by the power to enforce that will. As in the latter particular it was essentially feeble, the necessity for a clear specification of powers which should be exercised by the national government became speedily apparent, and led to the adoption of the Articles of Confederation. But those articles did not concede the full measure of power essential to the efficiency of a national government at home, the enforcement of respect abroad, or the preservation of the public faith or public credit; and the difficulties experienced induced the election of delegates to the Constitutional Convention held in 1787, by which a constitution was formed which was put into operation in 1789. As much larger powers were vested by this instrument in the general government than had ever been exercised in this country by either the Crown, the Parliament, or the Revolutionary Congress, and larger than those conceded to the Congress under the Articles of Confederation, the assent of the people of the several States was essential to its acceptance, and a provision was inserted in the Constitution that the ratification of the conventions of nine States should be sufficient for the establishment of the Constitution between the States so ratifying the same. In fact, the Constitution was ratified by conventions of delegates chosen by the people in eleven of the States, before the new government was organized under it; and the remaining two, North Carolina and Rhode Island, by their refusal to accept, and by the action of the others in proceeding separately, were excluded altogether from that national jurisdiction which before had embraced them. This exclusion was not warranted by anything contained in the Articles of Confederation, which purported to be articles of "perpetual union;" and the action of the eleven States in making radical revision of the Constitution, and excluding their associates for refusal to assent, was really revolutionary in character, and only to be defended on the same ground of necessity on which all revolutionary action is justified, and which in this case was the absolute need, fully demonstrated by experience, of a more efficient general government.3

1 See remarks of Iredell, J., in Penhallow v. Doane's Adm'r, 3 Dall. 54, 91, and of Blair, J., in the same case, p. 111. The true doctrine on this subject is very clearly explained by Chase, J., in Ware v. Hylton, 3 Dall. 199, 231.

2 Mr. Van Buren has said of it that it was "an heroic, though perhaps a law less, act." Political Parties, p. 50.

8 "Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the confederation, which stands in the form of a solemn compact among the States, can be superseded without the unanimous consent of the parties to it; 2. What relation is to subsist between the nine or more States, ratifying the Constitution, and the re