The "Fun Orders" of constitution, consisting of eleven articles, in which the frame of government then and there adopted was distinctly described. This docu- damental ment, known as the "Fundamental Orders of Connecticut (1639). Connecticut," created the government under which the people of Connecticut lived for nearly two centuries before they deemed it necessary to amend it. The charter granted to Connecticut by Charles II. in 1662 was simply a royal recognition of the government actually in operation since the adoption of the Fundamental Orders. Germinal development nial charter modern state of the colo toward the constitution. In those colonies which had charters these documents served, to a certain extent, the purposes of a written constitution. They limited the legislative powers of the colonial assemblies. The question sometimes came up as to whether some statute made by the assembly was not in excess of the powers conferred by the charter. This question usually arose in connection with some particular law case, and thus came before the courts for settlement, first before the courts of the colony; afterwards it might sometimes be carried on appeal before the Privy Council in England. If the court decided that the statute was in transgression of the charter, the statute was thereby annulled.1 The colonial legislature, therefore, was not a supreme body, even within the colony; its authority was restricted by the terms of the charter. Thus the Americans, for more than a century before the Revolution, were familiarized with the idea of a legislature as a representative body acting within certain limits prescribed by a written document. They had no knowledge or experience of a supreme legislative body, such as the House of Commons has be 1 Bryce, American Commonwealth, vol. i. pp. 243, 415. come since the founders of American states left England. At the time of the Revolution, when the several states framed new governments, they simply put a written constitution into the position of supremacy formerly occupied by the charter. Instead of a document expressed in terms of a royal grant, they adopted a document expressed in terms of a popular edict. To this the legislature must conform; and people were already somewhat familiar with the method of testing the constitutionality of a law by getting the matter brought before the courts. The mental habit thus generated was probably more important than any other single circumstance in enabling our Federal Union to be formed. Without it, indeed, it would' have been impossible to form a durable union. Abnormal of the state encroaching upon the province of the legislature. Before pursuing this subject, we may observe that American state constitutions have altered very much in character since the first part of the present development century. The earlier constitutions were conconstitution, fined to a general outline of the organization of the government. They did not undertake to make the laws, but to prescribe the conditions under which laws might be made and executed. Recent state constitutions enter more and more boldly upon the general work of legislation. For example, in some states they specify what kinds of property shall be exempt from seizure for debt, they make regulations as to railroad freight-charges, they prescribe sundry details of practice in the courts, or they forbid the sale of intoxicating liquors. Until recently such subjects would have been left to the legislatures, no one would have thought of putting them into a constitution. The motive in so doing is a wish to put cer tain laws into such a shape that it will be difficult to repeal them. What a legislature sees fit to enact this year it may see fit to repeal next year. But amending a state constitution is a slow and cumbrous process. An amendment may be originated in the legislature, where it must secure more than a mere majority perhaps a three fifths or two thirds vote - in order to pass; in some states it must be adopted by two successive legislatures, perhaps by two thirds of one and three fourths of the next; in some states not more than one amendment can be brought before the same legislature; in some it is provided that amendments must not be submitted to the people oftener than once in five years; and so on. After the amendment has at length made its way through the legislature, it must be ratified by a vote of the people at the next general election. Another way to get a constitution amended is to call a convention for that purpose. In order to call a convention, it is usually necessary to obtain a two thirds vote in the legislature; but in some states "the legislature is required at stated intervals to submit to the people the question of holding such a convention, as in New Hampshire every seven years: in Iowa, every ten years; in Michigan, every sixteen years; in New York, Ohio, Maryland, and Virginia, every twenty years."1 A convention is a representative body elected by the people to meet at some specified time and place for some specified purpose, and its existence ends with the accomplishment of that purpose. It is in this occasional character that the convention differs from an ordinary legislative assembly. With such elaborate checks against hasty action, it is to be presumed that if a law can be once embodied in a state constitution, it will be likely to have some permanence. Moreover, a direct vote by the peo 1 See Henry Hitchcock's admirable monograph, American State Constitutions, p. 19. The Swiss dum." ple gives a weightier sanction to a law than a vote in the legislature. There is also, no doubt, a disposi tion to distrust legislatures and in some measure do their work for them by direct popular enactment. For such reasons some recent state constitutions have come almost to resemble bodies of statutes. Mr. Woodrow Wilson suggestively compares this kind of popular legislation with the Swiss practice known as the Referendum; in most of the ReferenSwiss cantons an important act of the legislature does not acquire the force of law until it has been referred to the people and voted on by them. "The objections to the referendum," says Mr. Wilson, "are, of course, that it assumes a discriminating judgment and a fulness of information on the part of the people touching questions of public policy which they do not often possess, and that it lowers the sense of responsibility on the part of legislators." 1 Another serious objection to our recent practice is that it tends to confuse the very valuable distinction between a constitution and a body of statutes, to necessitate a frequent revision of constitutions, and to increase the cumbrousness of law-making. It would, however, be premature at the present time to pronounce confidently upon a practice of such recent origin. It is clear that its tendency is extremely democratic, and that it implies a high standard of general intelligence and independence among the people. If the evils of the practice are found to outweigh its benefits, it will doubtless fall into disfavour. QUESTIONS ON THE TEXT. What is to be said with regard to the following topics? a. The constitution. 1 Wilson, The State, p. 490. b. The relation of the courts to laws that violate the consti tution. c. The importance of this relation. d. The American origin of the written constitution. 2. The germs of the idea of a written constitution : a. The theory of a "social contract." b. The objection to this theory. c. Roman origin of the idea of contract. 3 Mediæval charters : a. The charter of a town. b. The word charter. c. Magna Charta. d. The difference between a charter and a constitution. e. The form of Magna Charta as contrasted with its essential nature. 4. Documents somewhat resembling written constitutions :a. The Declaration of Rights. b. The Bill of Rights. 5. The foreshadowing of the American idea of written constitutions : a. Two conditions especially notable in England in the sev enteenth century. b. The influence of these conditions on popular views of gov ernment. c. The "Instrument of Government." d. Sir Harry Vane's proposition. e. Why allude to Vane's scheme when nothing came of it? 6. Early suggestions of written constitutions in America: a. The compact on the Mayflower. b. Wherein the compact fell short of a written constitution. c. The "Fundamental Orders of Connecticut." 7. The development of the colonial charter into a written con a. The limitation of the powers of colonial assemblies. b. The decision of questions relating to the trangression of a charter by a colonial legislature. c. The colonial assembly as contrasted with the House of Commons. d. The difference between the written constitution and the charter for which it was substituted. e. The readiness of the people to adopt written constitutions. 8. The extensive development of the written constitution in some states ·1 |