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interesting to trace the development of the English constitution, noticing the changes which custom, statute, and judicial decision have worked in it during the thirteen centuries of its existence. We find the germ of the modern parliament in the Witenagemote, which met as early as 596 A. D. The king, similar in many respects to the present sovereign, existed more than a century earlier. The result of the Norman Conquest was not to undermine or revolutionize the constitution as it had previously existed, for William the Conqueror submitted to its customs when he ascended the throne in 1066. Since that time various modifications of the constitution have been brought about, sometimes by war, sometimes by peaceful means. But in all the vicissitudes through which it has passed, it has preserved its identity. On the other hand, the present constitution of Germany is radically different from the constitutions which existed before the formation of the North German Confederation. It was the result of a long struggle for national unity, a struggle which was decided at the Battle of Sadowa, in 1866, when, Austria being defeated, the North German states allied themselves together for the purpose of forming a national government. Existing institutions were overthrown, and the new constitution was established. Nearly four years later the South German states joined the Confederation, and modifications of the constitution became necessary. The name of the state was changed, and it has since been called "The German Empire." While there is an historical relation between the constitution prior to 1867 and that of the present day, legally no such connection exists.

In the United States, both the federal constitution and the constitutions of the individual States are written constitutions. This could hardly be otherwise. The prevailing spirit at the time of the American Revolution demanded a radical change in the form of government. Such a change could not, of course, be effected without the careful preparation of a new plan for the state, and this plan was naturally reduced to written form. It is also difficult to see how any definite division of the powers of government between the State and federal authorities could have been made without a written instrument. The constitutions of the thirteen original States were also written, and the States admitted into the Union since the adoption of the federal constitution have followed their example. As a result, constitutional law, in this country, is practically limited to a construction of the various clauses of these written constitutions.1

char

1. Smith Elem. L. 123–126. For a detailed discussion of the acteristics of the English and German

constitutions, see Anson's Law and Custom of the Constitution; Woodrow Wilson's The State.

§ 82. The Construction of Constitutions.2 The rules governing the construction of laws in general and those relating particularly to the interpretation of statutes, which have been previously discussed, apply also to the construction of constitutions. It will be well, however, to note particularly the special application of several of these rules when constitutions are concerned. The highest court of last resort in a particular jurisdiction is the final interpreter of the constitution governing that jurisdiction.

The interpretation of constitutions, as well as of other laws, is essentially a judicial function. In the construction of the federal constitution, the supreme court of the United States is the final authority. The highest court of last resort in a particular State has the ultimate right to interpret the constitution of that State. It often happens, however, that the question arises in a State court as to whether a State statute is in violation of a provision of the federal constitution. In such cases, it is the rule that if the decision of the State court is in favor of the validity of the statute, the case may be removed to the supreme court of the United States for a decision on the constitutional question; but if the decision is against its validity, the construction of the State court will be final.1

The interpretation of a clause of the constitution becomes necessary when, in an actual case, it is alleged that a particular statute is contrary to that clause. The federal courts, as well as those of most of the States, will not consider the question of the constitutionality of laws unless cases come before them in which a decision on that point is necessary in order to determine the rights of the parties. These tribunals were not established merely for the purpose of satisfying idle curiosity, nor to lay down general laws. This would be an encroachment upon legislative power. The primary function of the judiciary is to decide actual controversies, and it is only when a question of constitutional construction arises as an incident to such a controversy that it will be considered by the courts.

A statute will be presumed to be constitutional until the contrary is shown.

If part of the statute only is adjudged unconstitutional, and this part is capable of being separated from the remainder of the statute, such remainder will not be rendered invalid, unless the two are so mutually connected that the valid part, standing alone, would not express the true intention of the legislature. Thus, in a leading case, an Illinois statute provided: "If any

2. From Smith Elem. L. 126. As to the construction of constitutions see 8 Cyc. 724 et seq.

3. See supra, §§ 55, 56.

4. Rev. St. (1878) § 709. See also 11 Cyc. 928; Cohens v. Virginia, 6 Wheat. U. S. 264; Martin v. Hunter's Lessee, 1 Wheat. U. S. 304.

person shall harbor or secrete any negro, mulatto, or person of color, the same being a slave or servant owing service or labor to any other persons, whether they reside in this State or in any other State, or territory, or district, within the limits and under the jurisdiction of the United States, or shall in any wise hinder or prevent the lawful owner or owners of such slaves or servants from retaking them in a lawful manner, every person so offending shall be deemed guilty of a misdemeanor." The latter part of the section was held unconstitutional and void, because under the constitution of the United States the power to legislate on the subject of fugitive slaves was vested exclusively in congress; but the validity of the first part was upheld on the ground that it was a valid police regulation for the preservation of order in the State." The construction of constitutions is governed by the doctrine of stare decisis. That is, if a certain interpretation has been put upon a clause at one time, such interpretation should not be departed from except for reasons of the greatest weight.

If a statute be declared unconstitutional, it is made void from the beginning. Therefore any rights which may have been acquired under it are of no validity.

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83. The Essentials of a Written Constitution. All American constitutions consist of two elements: (1) The outline of the form and functions of the different branches of government, and (2) guaranties against governmental encroachment upon the rights of individuals. When these two elements are easily distinguishable from each other, the latter is usually called "The Bill of Rights." Each constitution contains provisions for its own amendment.

It is the characteristic of all written laws, and especially of constitutions, that they are not easily changed. While the common law is ever developing and taking on new forms, statutes are, in the absence of express amendments, as inflexible as the language in which they are written. And so a written constitution, once adopted, cannot be molded to meet new conditions. If change is desired, formal amendment is necessary. Public policy demands that provision should be made for such amendment; for it is not reasonable to expect that the fundamental laws of to-day will forever be appropriate. The power of amendment is the safety valve of the written laws, whose function it is to avert revolution. It is therefore provided in the federal constitution that: "The congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either 5. Willard v. People, 5 Ill. 461.

6. Smith Elem. L. 129.

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case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the senate." By virtue of this provision, as we have seen, fifteen amendments have been made to the federal constitution. The first ten were enacted because of the jealousy of the central government felt on the part of many of the States. They form a bill of rights, the first nine being intended to prevent federal encroachments upon the liberties of the people, the tenth reserving to the States all powers not delegated to the general government, nor prohibited by the constitution to the States. These were adopted in 1789. The eleventh amendment was proposed in 1798; the twelfth, in 1803. The thirteenth, fourteenth, and fifteenth were adopted at the close of the Civil War, and were ratified in 1865, 1868, and 1870, respectively.

84. Administrative Law. Administrative law includes all principles, whether constitutional, statutory, or unwritten, which regulate the performance of the functions of government by its officers. It naturally divides itself into: (1) Rules relating to the executive department; (2) rules relating to the legislative department; and (3) rules relating to the judiciary. In England, the two topics of constitutional and administrative law are not very plainly distinguished from each other. In this country, however, while they encroach upon each other's limits to a certain extent, they are essentially distinct; one being based entirely upon the written document which has been adopted as the fundamental law, the other including all rules, even though they may be found in the constitution, which govern the administration of public affairs.9

7. U. S. Const. art. 5.

8. See supra, § 40.

9. Smith Elem. L. 131.

TYMLOBD TIBKYBA

CHAPTER IX

CRIMINAL LAW

85. Nature of Crime and the Criminal Law in General.
86. How the Criminal Law is Prescribed.

87. Classification of Crimes.

88. Particular Crimes.

a. In General.

b. The Common-Law Felonies.
c. Common-Law Misdemeanors.

89. Criminal Intent.

a. In General.

b. Motive.

c. General Intent

d. Specific Intent.

Intent Presumed From Act.

e. Constructive Intent.

f. Intent in Cases of Negligence.
g. Ignorance or Mistake of Law.
h. Ignorance or Mistake of Fact.
i. Accident or Misfortune.
j. Justification or Excuse.
k. Provocation.

90. Criminal Incapacity.
a. In General.

b. Infants.

c. Insane Persons.

d. Drunken Persons.

e. Corporations.

91. Attempts and Solicitation.
92. Parties in Crime.

93. Modes of Punishment.

85. Nature of Crime and the Criminal Law in General. The criminal law is that branch of the law which defines crimes, treats of their nature, and provides for their punishment; and a crime is an act or omission so far contrary to public policy that the person guilty thereof is punished for it by and in the name of the sovereign body.1

1. See 12 Cyc. 129.

Among other prominent definitions of a crime may be mentioned:

Blackstone: "An act committed
or omitted in violation of the public
law either forbidding or commanding
it." 4 Blackstone Comm. 5.

Bishop: "Any wrong which the
government deems injurious to the
public at large, and punishes through
a judicial proceeding in its own
name." 1 Bishop Cr. L. § 32.
Austin: "An offense which is pur-

sued by the sovereign or by the subordinates of the sovereign.' Austin Jur. § 17.

James Wilson: "A crime is an injury so atrocious in its nature, or so dangerous in its example, that, besides the loss it occasions to the individual who suffers by it, it affects, in its immediate operation or in its consequences, the interest, the peace, the dignity, or the security of the public." 3 Wilson Works 4.

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