disallowing as unconstitutional the acts of nonsovereign legislative bodies; local self-government; the relations between the mother country and its colonies and dependencies. It describes the portions of the earth's surface over which the sovereignty of the State extends, and defines the persons who are subject to its authority. It comprises therefore rules for the ascertainment of nationality, and for regulating the acquisition of a new nationality by "naturalization." It declares the rights of the State over its subjects in respect of their liability to military conscription, to service as jurymen, and otherwise. It declares, on the other hand, the rights of the subjects to be assisted and protected by the State, and of that narrower class of subjects which enjoys full civic rights to hold public offices and to elect their representatives to the Assembly, or Parliament, of the Nation.

263. The American conception of a constitution. A brief statement of the essentials of a constitution according to the American point of view follows:

By "constitution we mean a specific written instrument defining the government; and an executive or legislative act is unconstitutional if contrary to the terms of that instrument. The five elements of the fundamental conception of our constitution are, that it is definite, comprehensive, supreme over all other forms of written law, fundamental, and alterable only by a special process.

264. Preambles to constitutions. Many constitutions contain interesting preliminary statements that throw light on the political history and the national psychology of peoples.

Constitution of the Argentine Nation: We, the representatives of the people of the Argentine Nation, assembled in general constitutional convention by the will and election of the provinces of which it is composed, in pursuance of previous agreements, for the purpose of constituting the National Union, of establishing justice, of insuring domestic peace, of providing for the common defense, of promoting the general welfare, and of securing the benefits of liberty to ourselves, our posterity, and to all persons who may desire to inhabit the Argentine soil, invoking the protection of God, the source of all reason and justice, do hereby ordain, decree, and establish this constitution for the Argentine Nation. . . .

Commonwealth of Australia Constitution Act: WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite

in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established: and Whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same as follows:

The British North America Act: An Act for the Union of Canada, Nova Scotia and New Brunswick, and the Government thereof; and for purposes connected therewith.

Whereas the provinces of Canada, Nova Scotia and New Brunswick have expressed their desire to be federally united into one Dominion under the Crown of the united kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the united kingdom:

And whereas such a union would conduce to the welfare of the provinces and promote the interests of the British empire:

And whereas on the establishment of the union by authority of parliament it is expedient, not only that the constitution of the legislative authority in the Dominion be provided for, but also that the nature of the executive government therein be declared:

And whereas it is expedient that provision be made for the eventual admission into the union of other parts of British North America:

Be it therefore enacted and declared by the queen's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same as follows: . . .

Constitution of the German Empire: His Majesty the King of Prussia, in the name of the North German Confederation, His Majesty the King of Bavaria, His Majesty the King of Württemberg, His Royal Highness the Grand Duke of Baden, and His Royal Highness the Grand Duke of Hesse and Rhenish Hesse for those parts of the Grand Duchy of Hesse lying south of the Main, conclude an eternal alliance for the protection of the territory of the Confederation, and of the rights of the same as well as for the promotion of the welfare of the German people. This Confederation shall bear the name of the German Empire, and shall have the following Constitution:

Constitution of the Swiss Confederation: In the Name of Almighty God. THE SWISS CONFEDERATION, desiring to confirm the alliance of the Confederates, to maintain and to promote the unity, strength, and honor of the Swiss nation, has adopted the following federal constitution: . .

The Constitution of the United States: We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

III. CREATION OF CONSTITUTIONS

265. The constitution and state origin. The fact that the state exists subjectively before it is definitely organized, and that the adoption of a constitution is merely a formal expression of preëxisting national consciousness is brought out in the following:1

It follows from what has been said, that this transformation of a community or of a society into a People, potentially or actually considered, cannot be due to any formal act on their part. Sentiments and desires are not thus formed. The necessity for the existence of the subjective condition prior to the objective creation of a political organization, makes impossible the assumption of a formal origin of the State. The logical result, therefore, is, that it is impossible to ascribe, even in modern times, a formal or juristic origin to the State. The adoption of a formal constitution cannot be considered as a creative act. The State is not, thereby, brought into existence, though from the historical standpoint it is for convenience properly so considered. The solemn adoption by a people of such a fundamental instrument is but the act through which that which has formerly existed in a more or less undefined and vague state, is brought into definite and positive statement.

It may be the fact, indeed, that the origin of the State (as, for example, the creation of a federal State, by the union of formerly independent States) is apparently synchronous with the adoption of the written constitution by which such union is effected. But it cannot be said that such federal State was created by such instrument. The creating cause was the feeling of national unity which found its formal and juristic expression in the articles of union. The constitution is the instrument that definitely creates and defines the organs through which the State, already subjectively in existence, is henceforth to exercise its activities. The essence of the State is the national feeling that unites its People, and its written constitution is but the formal expression of the fundamental principles according to which this People propose to conduct their political life. The truth of this is seen in the fact that a

1 Copyright, 1896, by The Macmillan Company.

written constitution is by no means essential to State life, and is, indeed, of very recent invention. Its raison d'être is no deeper than a political expediency that is based upon the definiteness thus obtained, and the added stability acquired by the restrictions that these written instruments ordinarily impose upon hasty and constant amendment.

From the standpoint of Public Law, it may not be necessary to go back of a written constitution; but from the philosophical standpoint the more teleological view is demanded. Viewed in this latter aspect, the true constitution of the State may be said to date from the earliest beginnings of State life, when first the feeling of unity began to be felt by the people, and to have developed pari passu as the feelings of national life have grown and found expression in political organization and control.

266. Adoption of written constitutions. A summary of the leading states that have recently adopted written constitutions follows : 1

Within the last century and a half most of the great states have adopted written constitutions. The American colonies, in converting themselves into states, led the way. Written constitutions were adopted in the year 1776 by New Hampshire, Virginia, South Carolina, New Jersey, Delaware, Pennsylvania, Maryland, and North Carolina; in the following year by Georgia and New York; and by Massachusetts in 1780. Connecticut and Rhode Island converted their royal charters into constitutions by putting the name of the people in the place of that of the king. France, at the commencement of the Revolution, framed and adopted (1791) a written constitution which, although soon set aside in favor of others equally ephemeral (1793, 1795, 1799), established a historic precedent. Each of the successive French governments of the nineteenth century has adopted a written constitution — the Bourbon government of the Restoration preferring, however, to avoid the word "constitution" and to substitute for it the term charter," which seemed to have less flavor of popular sovereignty. The present government in France, the third republic, though it has no single document called a constitution, has, nevertheless, a code of "constitutional laws," with a special method of revision. In the Napoleonic era a number of written constitutions were issued under French influence to the tributary Italian states. During the same time written constitutions were declared in Spain both by the Bonapartists, recognizing King Joseph (1808), and by the partisans of the Bourbon Ferdinand VII (1812). Neither of these proved permanent; but Spain is at present 1 By permission of Houghton Mifflin Company.

under a written constitution presented by the government to a convention, which ratified it in 1876. During the European rising against Napoleon (1813, 1814) written constitutions were promised by Prussia and by several of the states of Germany; after the war they were actually granted by Bavaria (1818) and by Württemberg (1819). The great revolution of 1848 precipitated a shower of written constitutions (all over central Europe. Though nearly all of them were canceled in the ensuing monarchial reaction, that of Sardinia (the "Fundamental Statute" of 1848) has remained in revised form as the constitution of the present kingdom of Italy. The king of Prussia issued in 1850 a constitution prepared by the crown and accepted by a legislative body of a reactionary character, which has since, in theory at least, served as the basis of the Prussian government. Austria, in 1867 (defeated in the war with Prussia and Italy, and fearing a disintegration of her heterogeneous provinces), adopted a set of fundamental laws closely analogous to a written constitution. At the present time, then, with the exception of England, Hungary, and the absolute monarchies, the chief European states have written constitutions. The same is true of the republics of Central and South America, all of which have written constitutions, serving at any rate as the nominal basis of their government.

267. English written constitutions. During the Commonwealth several attempts were made to draw up written constitutions for England. Their underlying ideas reappeared in colonial charters and governments and, later, in American state and federal constitutions.

At the culminating point of the Puritan Revolution, when Cromwell, swept on by the democratic movement, is compelled to follow it if he would become its master, a curious constitutional project is seen coming to the surface. This is the "Agreement of the People" presented by the army to the House of Commons, for its approval and eventual submission to the people. The idea of its authors, clearly stated in the document itself, and discussed in the pamphlets of the day, was the establishment of a supreme law, placed beyond the reach of Parliament, defining the powers of that body and expressly declaring the rights which the nation reserved to itself and which no authority might touch with impunity. This popular compact was to receive the personal adhesion of the citizens, according to a special procedure therein provided. Its promulgation depended upon its acceptance by the people. . . .

This manifesto contains the outline of a complete constitution. When we read it and summarize the demands it contains, we are astounded to find that it is nearly two centuries and a half old. The principles which