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state, but the foothold attained is very uncertain. It depends almost entirely upon the insight and disposition of the monarch as to whether a popular policy will be followed in the administration, or even as to whether the private rights of the people will be conscientiously observed. The change wrought during the century after 1485 has more the appearance of governmental usurpation than of political revolution. But if we go behind the appearance, we shall find that the basis of the government had been changed. Star-chamber and High Commission, as fashioned and employed by the Tudors, were national popular institutions. They protected the people against the violence of the barons and the rapacity of the foreign ecclesiastics.1 So long as the King followed a popular policy, and observed and protected popular rights, the relation between state and government in this system continued unclear. So soon as the government, the King, set up distinctly the claim to be the state in the jure divino theory of the Stuarts, then the real character of the relation became manifest. The people, now consciously the real state, broke away from their connection with the King, renounced him as the bearer of the power of the state. The problem was now that of creating a new and better organization of the state. The Parliament was the only existing institution which could now serve as nucleus. The Parliament was, however, but the representative of the aristocracy in the government. The people tried to reform it so as to make it representative of the people. This could not be done in a moment. The immediate result of the struggle between the people and the King was the partial restoration of the power of the aristocracy.2 I do not consider that a revolution in the form of state was effected by the movements of 1640-1688. The reform of 1688 touches mainly the govIt denied that the King was the state, but it


1 Gneist, Das englische Verwaltungsrecht, S. 507, 515. Zweite Auflage. J 2 Ibid. S. 584.

did not settle the question as to who or what or where the

state was.

It was nearly a century and a half before this problem received its solution. It was finally resolved by the revolution of 1832, the revolution par excellence in England's political history. This is usually termed a reform, but it was a revolution in every sense of the word, in form, in result, and in the manner in which it was accomplished. The popular uprising throughout western Europe in 1830 gave the immediate impulse. The whig leaders in the Parliament wisely and shrewdly undertook to direct this impulse. The movement accomplished itself under the issue of a bill in Parliament for making man, instead of land, the holder of suffrage, and for the distribution of representation upon the principle of population. The opposition of the House of Lords to the measure precipitated the revolution. Monster popular assemblies declared resistance to the government, and threatened the House of Lords with destruction. The persons of peers were attacked. The King was threatened with revolution by the ministers. He was forced, thus, to order dissolution against his will and, at last, to agree that the prime minister might pack the House of Lords. It did not come quite to civil war, but violence was both threatened and exercised. The great political result of the revolution. was that the people, the state, became organized in the House of Commons. The House of Commons came, thereby, to occupy a double position in the English system. It is one branch of the legislature, and it is sovereign organization of the state. In the former capacity it has no more power than the House of Lords. In the latter, it is supreme over King and Lords as well as common subjects.

It is generally claimed that the House of Commons reached this position through the employment of the existing forms

1 May, Constitutional History of England, Vol. I, pp. 330 ff., Vol. II, pp. 218 ff.; Molesworth's History of England, pp. 32-112.

of law and, therefore, without revolution; but I think this confounds fiction with form. When in the universal consciousness the form does not contain the original spirit or intent of the law, but is made a subterfuge for the accomplishment of something contrary to the same, then it becomes a fiction, and though from a juristic standpoint we may still consider it as containing existing law, from the standpoint of political science we must regard it as cloaking a new principle. The King's power to dissolve the Parliament was originally governed wholly by the royal discretion. When the ministers ordered out the Horse Guards and threatened the unwilling King with popular violence if he did not go down in person and dissolve Parliament, and secured their purpose in this way, they simply usurped the powers of the Crown. And when they forced the King in the same manner to consent to the packing of the House of Lords, they usurped again what had been, to that time, independent prerogative. It is a pure fiction to say that because the Crown now nominally does these things, it may do them in fact. It is the ministry, the chiefs of the party in majority in the House of Commons, who actually do these things. By the events of 1832 the King was really forced to surrender to the House of Commons those prerogatives which might be called prerogatives of sovereignty or prerogatives of the state, and the House of Lords was definitely assigned to its modern position of a governmental organ only. I contend, then, that this change of system, wrought by the events of 1832, was a revolution in every sense of the word, and that the present form of constitution of the English state and government dates no further back than the year 1832, at which time what has been usually termed the revolution of 1688 finally accomplished itself. The present constitution was then and thus formed by the people through the House of Commons; and that house is now the perpetual constitutional convention for the amending of the constitution. Its

acts in this capacity must, indeed, be approved by the Lords and the King; but if either of them resists, if either of them undertakes to change his or their nominal powers into real powers in this respect, i.e. if he or they attempt to act as state instead of government, the means and precedents are already fully established whereby the Commons, as organization of the sovereign, the state, may overcome the attempt. The only effect of such resistance is to keep the House of Commons in living and constant rapport with the people, whose sovereign organization it now is. The only sense, then, in which the British constitution is a more historical system than that of the United States, Germany, or France, is that in its development it has proceeded with somewhat less violence and has retained old forms and old names, even after they have become mere fictions, under which are cloaked the same spirit and principles, more openly manifested and more boldly pronounced in the other systems.1

Forms of government may be changed through existing legal methods, but not forms of state. A change in the form of state results from a natural change of the point of sovereignty in the political society and manifests itself through the display of superior power. In a word, changes in the forms of state are and can be accomplished only through revolution.

1 Bagehot, The English Constitution, pp. 117 ff.



THE Constitution of the United States also is a product of revolution, not only mediately but immediately; and in dealing with it from the juristic standpoint we need go no further back, certainly, than the year 1787. We are not yet, however, upon legal ground, as I explained at the beginning of the foregoing chapter. We are in this chapter tracing the organization of the American state to the point where it created its present constitution. We are compelled to examine the genesis of the American state from the standpoint of history and political science. To do this correctly we must begin at its beginning, and not at some arbitrarily chosen point in the course of that development.

We may divide our political history, down to the date of the formation of the present constitution, into three periods, viz; the colonial, the revolutionary, and the confederate.

In the colonial period what existed on this side of the Atlantic was thirteen local governments. The state was the motherland. From the juristic point of view the motherland was acting entirely within its rights and powers when it changed or modified, abolished or re-established, these governments at its own discretion. They were the creatures of the British state and, legally, absolutely subject to its sovereignty. The forms of existing law offered no escape from this conclusion. On the other hand, physical and social conditions and forces were working for the crea

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