by many of his successors. Another is the Petition of Right, which was addressed by Parliament to Charles I. in 1628, and received his approval. And still another is the Bill of Rights, which regulated the descent of the crown, and also declared certain fundamental rights of the people as against the royal power, which was enacted by Parliament in 1689, and received the royal assent. These statutes are in form not different from other statutes which are a part of the written law of England, but the nature of their provisions is such as to properly characterize them as important parts of the English constitution, and no attempt is ever made to repeal them. As parts of the written law, such statutes as these are of course binding on the courts.

In the United States the constitutions of the various states and of the federal government are formally written and rest upon the will of the people expressed directly, through their chosen representatives, and are regarded, therefore, as having a higher authority than that of statutes enacted by the legislatures, created and existing in accordance with the provisions of the constitutions, or of executive acts authorized by the constitutions. These constitutions are not only laws of the states and the federal government respectively, and therefore a part of the written law, but they are superior to the ordinary statutory law. Constitutional law in the United States, therefore, is concerned with the history and interpretation of certain formal written instruments, and not merely with the exposition of general and unformulated principles of government. Strictly speaking, constitutional law, as the term is used in this country, takes no account of mere practices and usages, no matter how generally observed, but is based on the language of written constitutions, and takes into account statutes, treaties, executive acts and regulations, and the decisions of the courts applying their provisions to specific cases.

Although the authority of a state or federal government is to be determined by the provisions of the written state and federal constitutions, and not from any mere general principles or constitutional rules recognized in this country or in Eng

land, nevertheless a written constitution is, like a statute, subject to interpretation, and must be applied to new circumstances and conditions by determining the true intent and purpose of its provisions. Nowhere is there any authority, however, to add to those provisions or to eliminate any portion of them, or to give them a meaning not reasonably within the intent with which they were framed, save by a formal amendment, as authorized in the constitutions themselves. Some text writers and a few judges have assumed that there is back of the written constitution a general unwritten constitution, somewhat analogous to that of Great Britain, serving as a limitation on the exercise of the powers of government as defined by the written instruments. This position is untenable and dangerous. If the written constitutions do not express the will of the sovereign people with reference to the distribution and limitations of the powers of government, but such will is to be ascertained from other sources, then we are practically in the same condition as the people of Great Britain and have no authoritative constitution. Furthermore, it is a fundamental principle of our constitutions that they have a higher authority than the corresponding general principles of the British constitution. Any act of the British Parliament supersedes previously existing rules and usages, however long established; while our constitutional provisions are effective as a definition of and limitation upon the powers of each branch of government, so that acts of any branch in excess of the power given to or in violation of limitations imposed upon it are invalid and of no force. To give to general principles and rules not found in a written constitution the force and effect of nullifying any action of a branch of the government which is not contrary to the written terms of the constitution, would be to assume that elsewhere than in the constitution-making power there is a power to limit and define the authority of branches of government created under the constitution. But no such authority can be found anywhere in our constitutional system. On examination it will be seen that what have been referred to as rules

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Written Constitutions.

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and principles of an underlying unwritten constitution are either on the one hand clearly implied in the provisions of the written constitutions themselves and therefore a part of them, as binding and effectual as though written in words; or on the other hand are mere general and well-recognized usages such as are said to be constitutional under a government like that of Great Britain, having no written and authoritative constitution, but which should not, where there is an authoritative constitution, as with us, be deemed any part of constitutional law.

Examples of such usages which have been so fully recognized that they might, if we had no written constitution, be said to be a part of the unwritten constitution, are the following: That no president shall be elected for more than two successive terms; and that the presidential electors shall vote for the candidate of the party on whose ticket they are selected. But it is evident that these so-called rules are not a part of our constitutional law. The limitation of the presidency to two terms for any one person furnishes a strong argument against the nomination or election of a president for a third term, an argument which has heretofore, as in the case of President Grant, been sufficiently potent to prevent renomination for a third term. But no one would pretend that, if such limitation were ignored and a president nominated and elected for a third term, he would not be lawfully president of the United States and have all the authority of president. No congress or court would venture to say that his election was for that reason not valid. Likewise there have been emergencies, such as the death before nomination of a candidate for president, which made it absolutely necessary for the electors chosen on a national party ticket to cast their votes for some one not nominated on such ticket, as in 1872, when Horace Greeley, the regular nominee of the Democratic party, died before the electoral vote was cast, and the electors in states in which the democratic ticket had a majority of the votes were compelled to exercise a discretion as to the candidate for whom their choice should be ex

pressed. It could not have been contended for a moment that votes thus cast should not be counted for the person designated, although he was not the nominee of the party. Any such general rules and principles, therefore, though they may be said in some sense to be a part of the unwritten constitution under our form of government, are not of equal authority with the provisions of our written constitutions and are not in a legal sense limitations on the powers of government. They are analogous to those portions of the unwritten constitution of Great Britain which are of no binding and legal effect, although representing the general customs and usages in accordance with which that government is administered.

In Great Britain no acts of Parliament regularly adopted can be said to be unconstitutional in the sense of being invalid and without legal effect. It may be urged as against a proposed act of Parliament that it will be unconstitutional because in violation of the general principles and usages recognized by the unwritten constitution. But when adopted the statute in practical effect modifies the constitution, and is fully operative and potent. In this country, however, a statute which is in violation of the constitution is wholly invalid and impotent, and the constitution remains unaffected.

6. Government under a Written Constitution; Ultimate Sovereignty.

The difference between the governmental system of the United States and that of Great Britain, from a constitutional point of view, is not, however, merely that the principles of constitutional law are in the one case formally reduced to writing, while in the other they are recognized without being authoritatively reduced to definite statement. In Great Britain the ultimate sovereign power rests in the government and is exercised by Parliament, and no superior constitutional authority is recognized; while in the United States there is no unlimited sovereign power in either the federal or state governments or in any of the branches thereof, and ultimate

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Ultimate Sovereignty.

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sovereignty, if it is to be conceived as existing anywhere, rests with the people as a whole. The powers of government in the United States are derived by delegation in the terms of the federal and state constitutions from the people by whom such constitutions have been adopted; and no department of government can lawfully exceed the authority given to it by general or specific grant in the constitution under which it exists, nor can it transcend the limitations imposed upon it by such constitution. The real distinction, then, consists in the fact that the government of Great Britain is regarded as possessing sovereign power, while the federal and state governments of the United States possess only such powers as are generally or specifically delegated to them.

Since sovereignty in the United States does not rest in the government or any division of it, it may be interesting to inquire where it does reside. (1) The state and federal constitutions are supposed to emanate from the body of the people; but in fact the state constitutions have been adopted in most instances by popular vote, the assent of the body of the people being expressed by the qualified electors; that is, the approval of a majority of those voting, out of the one-fifth of the population which is entitled to vote, is the highest formal approval obtainable for them from the body of the people, in which ultimate sovereignty may be supposed to rest; while the federal constitution was adopted by conventions in the different states at that time composing the Union, such conventions being made up of delegates selected by the electors and acting under authority derived from them. It can hardly be said, therefore, that in any practical sense ultimate sovereignty as indicating an efficient power resides in the body of the people, for such body does not in any sense or under any circumstances act in its sovereign capacity. (2) It cannot be said that sovereignty resides in the voters, for, as they are determined and their action is regulated by the constitutions and the statutes, they can do nothing except as authorized by such constitutions. The body of the voters like the officers whom they select exercise only a delegated