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resign, and that the members of the party which it represents in the House of Commons refuse to form a new ministry. This will force the Crown to take a ministry from the opposition; but such a ministry, not having the support of the House, cannot govern. The Crown will then be obliged to take another ministry from the majority, or dissolve Parliament. If it should order dissolution and the constituencies then return the same party in majority as before, the Crown and the Lords will be compelled to give way.1 But this is exactly the course of legislation upon any other subject, and this is exactly the manner in which the whole of the present constitution came to be just what it is. In other words, the organization of the state within the constitution is the same as was its organization back of the constitution. It is the newly elected House of Commons. It is the political people organized through their representatives in that House, chosen in view of a particular principle or measure. This is not the plébiscite in the French sense. The vote is not directly upon the proposition of law, but for persons who profess to support or to oppose the proposition. Neither are these persons bound by the views of their constituents as manifested in their election. The English plébiscite thus avoids the dangers to which the French principle is exposed, at the same time that it secures a substantial agreement between the people and their representatives.

There is very great advantage in this correspondence between the revolutionary organization of the state back of the constitution and its continuing organization within the constitution. A difference in this respect is unnatural and artificial. The organization of the state back of the constitution is the result of a free development in the political society. It may therefore be assumed to correspond with the actual substance of power. If now, when the state provides for its

1 Bagehot, The English Constitution, p. 295 ff.

own organization within the constitution, it binds itself by forms which limit its original freedom of action, or if, on the other hand, it emancipates itself from the forms which guarded it originally against accidental results, it will soon be found either that the true development of the state will be hindered, or that the state will be driven into rash and hurtful experi


It is not necessary, however, to this advantageous correspondence of organization between the state back of and within the constitution, that this organization should be, at the same time, the whole or a part of the government. In fact, there are disadvantages in this. In the first place, it is confusing. It makes it difficult to determine what legislative measures are to be regarded as organic and relatively stable and what are to be regarded as ordinary statutes. For example, it is customary to hear the phrase "statutory Parliament" applied to the proposed Gladstonian legislature for Ireland. I do not understand what other kind of Parliament could be legally created in Ireland, or in any other part of the British dominions subject to the Parliament at Westminster. I suppose it was intended to indicate by the phrase that the proposed Irish legislature was to be an institution which might be abolished by the Parliament at Westminster; but every institution of the British state may be so abolished. There is deception in the phrase. It implies to an American reader a less independent institution than would really be thus constituted. In the second place, the identity in organization of the state and the government, or a part of the government, leaves individual liberty a less independent position in the constitution than is wholly compatible with its importance to the welfare of society. It opens the way for the government to encroach ad libitum upon the natural domain of individual autonomy, and leaves the individual defenceless against such encroachment. Lastly, the identity in organization of the state and the government renders a

federal system of government impossible. The test of that system lies in the principle that the central government cannot destroy nor modify the local, nor the local government the central. Now this relation between central and local government is impossible unless both rest upon a common basis, i.e. the co-ordination of these independent governments as parts of a harmonious political system requires an organization of the sovereign, the state, distinct from and supreme over both.

It will thus be seen that the organization of the state within the British constitution has its points of advantage and of disadvantage. It has consistency in character, absoluteness in power, precision in action and facility in employment. Through its correspondence with the revolutionary organization of the state back of the constitution on the one side, and with the government on the other, it receives the impulse to change from below and the disposition to conserve from above; but it risks everything upon the wisdom, the integrity, and the patriotism of the party in majority in the House of Commons. Should these qualities fail in the makeup of that body, the liberty of the individual and the welfare of society would inevitably suffer violence and perhaps destruction.



THE fifth article of the constitution of the United States reads: "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 twothirds of the several States" [commonwealths], "shall call a convention for proposing amendments, which, in either 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," [commonwealths] " 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," [commonwealth] "without its consent, shall be deprived of its equal suffrage in the Senate." The first part of the proviso has become obsolete, and therefore needs no further consideration; but the second is as permanent and binding as any other part of the constitution.

As I have already indicated, the proper standpoint from which to examine the organization of the state within the constitution is its relation, on the one side, to the revolutionary organization of the state back of the constitution or, if the political society back of the constitution has outgrown that original organization, to the existing social conditions back of the constitution and, on the other side, to the gov

ernment created in the constitution. In an earlier chapter of this work, I have endeavored to show that the real organization of the United States as the sovereign, the state, in our present system, was in the constituent convention. This, like the Continental Congress, was a single body, representing the whole people of the United States and passing its resolves by simple majority. The people of the United States, as a whole, were behind this body, and gave it the power to ignore practically the Confederate Congress and the legisla tures of the commonwealths, and, while formally submitting its work to ratification by the immediate representatives of the people in the commonwealths, chosen by the people for that especial purpose, to really ordain the constitution. As I have shown, this theory of the character and position of the convention is the only one which will give scientific explanation to its acts, and the only one which fits in with the natural status and relations of what we may term American political society. The organization of the state within the constitution, however, is of a double, and perhaps of a triple or quadruple, character. Article V provides, in the first place, for an organization apparently very nearly correspondent with the original organization back of the constitution, viz; a convention for proposing amendments, and conventions of the people resident within the several commonwealths for ratifying the same. According to the letter of the law, however, the general convention is only an initiating body, and a three-fourths majority of the separate conventions is the real constituent. This was the apparent relation between the original convention of 1787 and the separate conventions within the commonwealths; but, as I have shown, that body really exercised constituent powers when it framed an entirely new constitution, designated the bodies who should ratify it, and fixed the majority necessary for ratification. It is probable that another convention, representing in a single body the whole people of the United

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