These constitutions lay down certain rules, according to which the legislative, executive, and judicial functionaries must he chosen ; they fix limits to their several powers, both with respect to one another, and with respect to the individuals who compose the sovereign. "They do ordain and declare the future form of govern ment." For example, the Constitution of Virginia of 1776 declares " that all mi nisters of the Gospel of every denomina tion shall be incapable of being elected members of either House of Assembly, or of the Privy Council." The same rule, we believe, forms a part of the amended Constitution of the same state. If the Virginian legislature were to pass an act to enable clergymen to become members of the House of Assembly or of the Privy Council, such an act would be unconsti tutional, and no one would be bound to obey it. The judiciary, if such a matter came before it, would, in the discharge of its duty, declare it unconstitutional, and such so-called law could have no further effect than if any unauthorized body of men had made it.
A constitution, then, is nothing more than an act of the sovereign power, by which it delegates a part of its authority to certain persons, or to a body, to be chosen in a way prescribed by the Act of Constitution, which at the same time fixes in a general way the powers of the body to which a part of the sovereign power is thus delegated. And the sove reign power changes this Constitution whenever it pleases, and in doing so acts neither constitutionally nor unconstitu tionally, but simply exercises its sovereign power. No body can act unconstitution ally except a body which has received authority from a higher power, and acts contrary to the terms which fix that authority. Wherever, then, there is a sovereign power, consisting either of one, as the Autocrat of Russia, of three mem bers, king, lords. and commons, as in England (provided these three members do possess the complete sovereign power), or of all the males born of American citi zens and of a given age, and of all natu ralized foreigners, as in most of the United States of North America—such sovereign power cannot act unconstitu tionally. For to act unconstitutionally would be to act against a rule imposed by some superior authority, which would be a contradiction.
A constitutional government may be either purely democratical, as those of the United States of North America, or it may he republican, that is, a govern ment in which the sovereign power is simply defined as not being held by one person, as in France and England. It may be of such a kind that it shall approach very near to a monarchy, if the king or other head of the state is by the constitution invested with very great powers, or such powers as may enable him to overpower, overawe, or render incapable of action, the other limbs of the Constitution. A constitutional government may be of the aristocratical kind, as England, where the power of the crown is now very limited in practice, and is in effect wielded by the small number who for the time ob tain the direction of affairs by means of being able to get a majority of the House of Commons ; for this body, though elected by the people, cannot yet be con sidered as a really popular body. The French king, under the Charter, has greater powers than the English king has in fact, though in theory it may seem otherwise. The present King of the
French presides in his own Cabinet ; the English Cabinet deliberates without the presence of the king, whose wishes, in opposition to those of the Cabinet, can never be carried into effect. The Cabinet consists of the responsible ministers ; they are the king's servants, but so long as they are in office they act as they please. But whatever variety of form there may be in constitutional governments, the essen tial element to a constitutional govern ment, as here understood, is an assembly of representatives chosen by all the people. or by a considerable proportion of them. This is the body on which a constitutional government depends for its strength, its improvement, and its existence. This is the element out of which ought to come all the ameliorations of the condition of the people which can be effected by legis lative measures. The limb or member of a constitutional government, which is composed either of hereditary peers, or of peers named for life by a king, is from its nature an inert body. It may resist unwise and hasty change, but it is not adapted for any active measures.
The policy of having a constitution in a state where the sovereign power is in the hands of all the citizens may be de fended on general grounds of conveni ence. When the community have settled that certain fundamental maxims are right, it is a saving of time and trouble to exclude the discussion of all such mat ters from the functions of those to whom they have by the constitution intrusted legislative power. Such fundamental rules also present a barrier to any sudden and violent assumption of undue authority either by the legislative or executive, and oblige them, as we see in the actual work ings of constitutions, to obtain their ob ject by other means, which, if not less dangerous in the end, are more slow in their operation, and thus can he detected and are exposed to be defeated by simi lar means put in action by the opposing party. There are disadvantages also in such an arrangement. Constitutional rules when once fixed are not easily changed ; and the legislative body when once established, though theoretically, and in fact too, under the sovereign con trol, often finds means to elude the vigi lance and defeat the wishes of the body to which it owes its existence, and from which it derives its power. One of the great means by which these ends are effected is the interpretation of the writ ten instrument or constitution, which is the warrant for their powers. The prac tice of torturing the words of all written law, till in effect the law or rule is made to express the contrary of what seemed to be at first intended, appears to be deeply implanted in the English race, and in those of their descendants who have established constitutional forms on the other side of the Atlantic. The value of all written instruments, whether called constitutions or not, seems considerably impaired by this peculiar aptitude of men to construe words which once seemed to have one plain meaning only, so that they shall mean anything which the actual cir eumstances may require, or may seem to require.