Constitution

The fundamental law of a state, directing the principles upon which the government is founded, and regulating the exercise of the sovereign powers, directing to what bodies or persons those powers shall be confided and the manner of their exercise. An established form of government; a system of laws and customs. Constitution, in the former law of the European continent, signified as much as decree, — a decree of importance, especially ecclesiastical decrees. The decrees of the Roman emperors referring to the jus circa sacra, contained in the code of Justinian, have been repeatedly collected and called the Constitutions. The famous bull Unigenitus was usually called in France the Constitution. Comprehensive laws or decrees have been called constitutions; thus the Constitutio Criminalis Carolina, which is the penal code decreed by Charles V. for Germany, the Constitutions of Clarendon (q. v.). In political law the word constitution came to be used more and more for the fundamentals of a government, — the laws and usages which give it its characteristic feature. We find, thus, former English writers speak of the constitution of the Turkish empire. These fundamental laws and customs appeared to our race especially important where they limited the power and action of the different branches of government; and it came thus to pass that by constitution was meant especially the fundamental law of a state in which the citizen enjoys a high degree of civil liberty; and, as it is equally necessary to guard against the power of the executive in monarchies, a period arrived — namely, the first half of the present century— when in Europe, and especially on the continent, the term constitutional government came to be used in contradistinction to absolutism. We now mean by the term constitution, in common parlance, the fundamental law of a free country, which characterizes the organism of the country and secures the rights of the citizen and determines his main duties as a freeman. Sometimes, indeed, the word constitution has been used in recent times for what otherwise is generally called an organic law. Napoleon I. styled himself Emperor of the French by the Grace of God and the Constitutions of the Empire. Constitutions were generally divided into written and non-written constitutions, analogous to leges scriptas and non scriptce. These terms do not indicate the distinguishing principle; Lleber, therefore, divides political constitutions into accumulated or cumulative constitutions and enacted constitutions. The constitution of ancient Rome and that of England belong to the first class. The latter consists of the customs, statutes, common laws, and decisions of fundamental importance. The Reform act is considered by the English a portion of the constitution as much as the trial by jury or the representative system, which have never been enacted, but correspond to what Cicero calls leges natce. Constitutional law in England appears to include all rules which directly or indirectly affect the distribution or the exercise of the and their relation to each other and the mode in which it, or the members thereof, exercise their authority, the order of succession to the throne, the prerogations of the chief magistrate and the form of the legislature and its mode of election, ministers with their responsibilities and sphere of action, the territory over which the sovereignty of the state extends, and who are to be deemed citizens and subjects.

Dicey, Const. 22.

Our constitutions are enacted; that Is to say, they were, on a certain day and by a certain authority, enacted as a fundamental law of the body politic. In many cases enacted constitutions cannot be dispensed with, and they have certain advantages which cumulative constitutions must forego; while the latter have some advantages which the former cannot obtain. It has been thought, in many periods, by modern nations, that enacted constitutions and statutory law alone are firm guarantees of rights and liberties. This error has been exposed in Lieber's Civil Liberty. Nor can enacted constitutions dispense with the "grown law" (lex nata). For the meaning of much that an enacted constitution establishes can only be found by the grown law on which it is founded, just as the British Bill of Rights (an enacted portion of the English constitution) rests on the common law. Enacted constitutions may be either octroyed, that is, granted by the presumed full authority of the grantor, the monarch; or they may be enacted by a sovereign people prescribing high rules of action and fundamental laws for its political society, such as ours is; or they may rest on contracts between contracting parties, — for Instance, between the people and a dynasty, or between several states. We cannot enter here into the interesting Inquiry concerning the points on which all modern constitutions agree, and regarding which they differ, — one of the most instructive inquiries for the publicist and jurist. See Hallam's Constitutional History of England; Hare; Miller; Rawle; Story; Tur-ker; Watson; Willoughby; Stimson; Sutherland; Flanders; Guthrie; Foster; Boutwell; Ti^deman (the Unwritten Constitution); Taylor; Thayer, on the Constitution; Farrand, Records of the Federal Convention: Sheppard's Constitutional Text-Book; Elliot's Debates on the Constitution, etc.; Lieber's article (Constitution), In the Encyclopaedia Americana; Cooley, Const. Llm.; Bryce, Am. Com.; Von Hoist, Hist. U. S. For the constitutions of the several states, including those in force and the previous ones, see Charters and Constitutions, published under authority of Congress in 1S78. Thorpe's American Charters. Constitutions, etc., gives the constitutions down to 1908 inclusive. Constitution, Self-Executing Provisions. A constitutional provision may be said to be self-executing if it supplies a sufheieut rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced, and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.

Cooley, Const. Lim. 99 [84], -1th ed.

101. "The question in every case is whether the language of a constitutional provision is addressed to the courts or the legislature.... If the nature and extent of the right be determined by the examination and construction of its own terms, and there is no language used indicating that the subject is referred to the legislature for action, then the provision should be construed as self-executing, and its language as add to the courts." "Willis v. Mabon, -lv Minn. 160, 50 X. W. 1110, 16 L. B. A. 281, 31 Am. St. Rep. 82ft "But it must remain entirely clear that where a state constitution declares In language that the members of corporations Shall he individually liable for their debts to a defined extent, it cannot be held that supplementary legislation is required to execute this provision, and hence that the li ture may leave it forever dormant and inoperative merely because the trainers of the constitution did not go on and prescribe the remedy which should be pursued for enforcing it."

Thomp. Corp. § 3004. See Morley v. Thayer, 3 Fed. 739; Barnes v. Wheaton, 80 Hun 14, 29 N. Y. Supp. 830; May v. Black, 77 Wis. 104, 45 N. W. 949; Groves v. Slaughter, 15 ret. (U. 8.) 449, 10 L. Ed. 800; Pierce v. Com., 104 Pa. 150; Fredericks v. Canal Co., 148 Pa. 317, 23 At I. 1087.

But it has been held that a constitutional provision that "dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by such stockholder, and such other means as shall be provided by law," is not self-executing and is inoperative until supplemented by statute; Marshall v. Sherman, 148 N. Y. 9.

42 N. E. 419, 34 L. K. A. 757, 51 Am. St. Rep. G54.

A provision of a state constitution imposing upon stockholders personal liability, to an additional amount equal to their stock, for "dues from corporations," is self-executing; Whitman v. Bank. 170 U. S. 559, 20 Sup. Ct. 477, 44 L. Ed. 5S7. CONSTITUTION OF THE UNITED