a political point of view, is, the actual and theoretical attitude of the colonies to one another.

Up to the outbreak of hostilities with the mother country, the different colonies had not certainly been sovereign states. Great Britain was the sovereign and the colonies were subordinate parts of the kingdom; yet they were in a degree independent parts. They were dependencies, not parts, as a county or shire is a part of the kingdom. When, therefore, they cut the tie which bound them to the common superior, they were sovereign as to one another. The articles of confederation were an agreement between States; the action of the central congress was upon the States and not directly upon the individuals within the States. Here, as has often been pointed out and as the framers of the subsequent constitution clearly understood, was the fatal defect.

When afterwards this confederacy broke down, the problem which the constitutional convention attempted to solve was to establish a working frame of government involving two leading ideas, State sovereignty and at the same time United States sovereignty. Theoretically, the several States were sovereign; they passed directly from the dependent, colonial condition into the condition of the independent state. The social fact, however, was that the whole people constituted a nation. They were not, it is true, really conscious of their nationality; this consciousness came by degrees later. We may call them an embryo nation; at least all the elements of a nation were there. Politically they were parcelled off into States. There was still a large fund of colonial pride which merged into State pride, but no doubt the apprehension which turned the greater number from the national idea was the belief that a strong central government would crush out State autonomy, and especially that there was

serious danger that the executive might gradually grow into something akin to a monarchy. We must remember that although at that period parliamentary government was firmly established in England, yet that personal government was also strong; and there was no adequate surety to the general mind that kingly usages might not gradually drift back towards the old pretensions of divine right. Then again, the small States were jealous of and feared the large ones. The preponderating influences were in favor of an alliance of the States, rather than their immediate fusion.

It is said that the fathers of the Republic invented a new kind of government, a feḍeral state, founded upon a written constitution. However true this may be, we are now able to assert that in so far as they violated fundamental principles in government their work has not been interpreted in all respects as they supposed it would be. The intent of the constitution did certainly violate the fundamental principle that two wills cannot at the same time be sovereign in the same state. The conflict introduced at the very beginning was between the two wills; the one of the State and the other of the nation. The key to our whole national political history since 1789 is here,

CHAPTER XI.

THE MAKERS OF CONSTITUTIONAL LAW.

WHEN We have determined with reference to any given nation where sovereignty is lodged, we should next inquire how does the sovereign express his will? We shall find

that it is usually in two ways, one is in the establishment of a form of government and organs of state power, and also frequently of fixed rules of state action; this may be styled the permanent will of the nation. The other is manifested in the statutes and ordinances enacted from time to time by the law-making organs of the government. This may be styled the occasional will of the nation. If there is a written constitution which can be modified only in a specified way, it constitutes this permanent will. Such an instrument furnishes a written enumeration of those features of the political system which it is desired shall remain unchanged except by a formal act of the ultimate sovereign in the way pointed out in the instrument itself. There is no difficulty under these circumstances in ascertaining what is this permanent will. But in those instances where, what is called the constitution is unwritten, there is more or less vagueness in its definition. We can only say there are certain features in the governmental system which the bulk of the people consider ought to be permanent, and a change in which they would look upon as revolutionary.

Such a constitution consists of provisions for the national government, as, for instance, the king or execu

tive head, the houses of the legislature, whether two or more, including their internal structure and relation to each other, and the courts of justice. It provides also for the fixed institutions pertaining to the local jurisdictions, as those of provinces, shires, counties, towns, or townships. It may likewise include certain established laws and even maxims concerning personal rights, as that there shall not be taxation without representation, that jury trial shall be preserved, that private property shall not be taken for public use without just compensation, and the like. The occasional will of the nation finds its expression, as already intimated, in the statutes or ordinances that may be enacted from time to time by some organ or organs of the government established for that purpose. Whether the expression of national will be in a constitution or a statute, they are relatively to each other only, permanent or occasional. It might be said, perhaps with greater accuracy, that the only difference is that the constitution is more permanent than the law enacted under it, but both are nevertheless expressions which are subject to changes. It may be that the same organs of the government which pass the ordinary legislation have also the power to amend the constitution. This is the case in the German Empire. Nevertheless there the two wills are still distinct and must manifest their expressions separately, so that it may occur that the occasional will conflicts with the permanent will. For example, while it lies with the Emperor, the Bundesrath, and the Reichstag conjointly to amend the constitution, they may also together pass an ordinary law. Each, however, is a separate expression. The ordinary statute, if in conflict with the constitution, falls to the ground; it does not, because passed by the same organs, operate as an amendment or repeal of the fundamental law. On the other hand, that body of statutes

and old usages which publicists designate as the British Constitution, may be changed by an act of Parliament. In the United States the organs which express the occasional will of the nation are more strictly limited in power, and whenever the statute conflicts with the written constitution it is void.

In a despotic state the power to express the permanent as well as the occasional will resides in the same person, the monarch; but nevertheless there can hardly be found a polity so primitive but that there is, at least, a substantial body of customs which have consolidated into the similitude of constitutional law and which the most despotic ruler does not invade. These honored usages really indicate the permanent will of the community. In the complex modern states this permanent will expresses itself, as already suggested, in some, in written constitutions; in others in the departments of government and in maxims of public and private law, established perhaps at remote periods and changed, added to, and modified from time to time by the sovereign, until now they are accepted by the nation as stable. In Great Britain is the most marked instance of the permanent will of a nation, gradually hardening as it were, into a most complicated constitutional structure. Russia is a more modern instance of a land where, theoretically, one and the same man may express both the permanent and the occasional will of the community, and yet where, in fact, an elaborate governmental scheme has grown to express a national will that is practically permanent. In most countries at present, however, there are written constitutions which express the permanent national will.

From the foregoing considerations we reach the conclusion that when we determine, under any system, the person or persons competent to amend the constitution,