son, "will constantly break forth from God's word." But the dark and narrow creed which could not let the daylight in bred schism and heresy; and the world applauded and progressed. More light is constantly breaking forth from a progressive democracy, which, if excluded from a rigid constitution, may find a place in discontent and revolution.

We need not be disturbed then if as lawmakers we find ourselves confronted with problems new, perplexing and momentous. They may be but the evidence of life, activity, progress in the body politic, and an inspiring test of our wisdom, courage and patriotism. If on the one hand we stoutly resist the demand that constitutional government shall either abdicate in favor of anarchy, or assume the paternal duties of the patriarchs of tribal days, or the later village communities, let us not on the other hand give way to that unprogressive conservatism which sees danger in the slightest movement of the ship of state, though it be but the paying out of sufficient cable to allow her to breast the rising winds and tides with safety and success. Between the two is a safe and proper course, which we can take, fearing not the gorgon head of anarchy, nor the wrinkled face of Bourbon conservatism, nor even the siren voice of socialism and paternalism.

We recognize the right and need to narrow or bridge the gulf between society and law; but insist that this cannot be done either by the abrogation or stagnation of law or by substituting it for the functions of society. It can be done by change, and safely, wisely, when such change is of law; and, if of organic law, within the lines which mark its proper scope and office.

And so, after some wandering, we come back to the path upon which we entered this broad field of constitutional law, We have found that our subject takes us far back into the past; that constitutional law has been an evolution out of centuries of strife and progress; that this history is our history; and that in our colonial days and later "the constitution of the mother-land had been more than an ideal model; it had been a vital factor in the life of the American people."

We have observed that growth is its constant rule, and will be so long as society advances; that its change in our progressive age is natural, often necessary-but that such change is or ought to be upon fixed principles which define and limit it.

To ascertain these principles we must consider the purpose and object of constitutional law, and again turn to history and precedent for its origin and evolution.

A constitution is government and government by law, establishing its principles, dividing and regulating its powers and directing its administration. The purpose of a constitution "is to establish a framework of government and to provide in outline for its powers and functions." As government merely, it has existed since man's creation; however crude, tyrannical, or paternal, it has sought to regulate his relations to his fellow men as members of society which it controlled. We need not follow John Locke in his discussion with Sir Robert Filmer back to the Garden of Eden, where he finds a justification of despotic government in the power there conferred upon Adam, to be convinced that government is as old as the human race, and that its primal principle was control, pure and simple. Then through ages of evolution and revolution grew a second great principle-that of compact, consent, with a recognition of the governed as well as of the governing class.

Without attempting to trace the evolution in the dimness of the past, we can see three stages of development in government before the principle of compact was established. First, the paternal control of the era of Abraham, Isaac and Jacob over a pastoral life and country thinly populated, where the only constitution necessary was the paternal word. Then as

the people multiply and segregate in tribes, we see paternal merging into tribal government, yet, still control, arbitary and unqualified. Such was the theocracy ruling the tribes of Israel. There is no hint of compact or consent in the Ten Commandments, or in the regulations established for the "chosen people." The law of the Pentateuch is only "thou shalt" and "thou shalt not." Then with increasing population and its closer union came the dawn of national life, and

with it the germ of compact, the first faint recognition of the right of man to a voice in the government which ruled him. History does not tell us when this germ originated. Left to surmises, we may fancy we see it developing upon the plains of Troy, in the haughty rebuke of Ulysses of Thersites :

But if a clamorous, vile plebeian rose,

Him with reproof he checked or tamed with blows.
Be still, thou slave, and to thy betters yield,
Unknown alike in council and in field.

Certainly it was early found in national government, and once there it could not be eradicated.

Neither the inroads of Goths and Vandals, nor the regime of ecclesiasticism, nor the servility of feudalism, nor the divine right of kings could destroy it-only at best check for a time its growth.

So constitutional law established on the principles of control and compact grew and developed. While we appreciate the influence upon it of Greece and Rome with their recognition of some of its fundamental principles, we know that our constitutional law comes not so much from these classic sources as from our fighting Anglo-Saxon forefathers. In their blood was less of submission than assertion. Out of their contests came rights by consent to supplement control by authority, and make a well-rounded government. Henceforth control was tempered by compact. Thus came Magna Charta, the basis of liberty and self-government of the seven succeeding centuries. "Do they think I will grant them liberties that will make me a slave," said King John, when the demand of the barons of Runnymede were made known to him. Then, yielding to a power he could not resist, he gave his assent "for the sake of peace" he said, “and the exaltation and honor of the kingdom." Here was the battle between absolute power and the right of the governed, between control and compact. Absolutism had made its last stand, and the victory of the barons placed the principle of compact in the constitution as a controlling force forever for the Anglo-Saxon race. So Magna Charta declared over the signature of the King: "To all our free subjects of the kingdom of England, we, for oursclves and our heirs forever, have granted all the underwritten

liberties, to be had and to be held, by them and their heirs, from us and our heirs."

Thus developed the two fundamental principles of constitutional law; control, to establish government and to determine its framework, but modified now by compact, to guard the rights and liberties of the governed and to give them a part in the making of law. Their constitutional bulwark was no longer to be but the uncertain and unstable pledge of the coronation oath. Control now meant representative institutionsa Parliament, and division and limitation of authority; now had come the dawn of self-government. True, Magna Charta and the Parliament of Simon de Montfort had not ended the conflict nor completed the work, but they had established a permanent principle, potent in influence and certain of growth. Kings might insist upon absolute power, but were forced by the people to constant reaffirmation of the great charter, with larger liberties for the people and further limitations on the crown. Control by Parliament of taxation and law, trial by jury, imprisonment only by warrant and responsibility of the king's officers were some of the principles evolved by the time of Henry VII out of the protracted struggle. A Henry VIII might still, with the consent of a submissive Parliament, call royal proclamations law, and establish the star chamber; the Stuarts might plead again the divine right of kings, and servile judges might deride the power of Parliament as a "king-joking policy;" but they were only paving the way for petitions and bills of right, and kabeas corpus and succession acts, and inspiring the Cokes and Hampdens and Cromwells to assert the rights of the governed, and to make compact, consent, the dominant power of their organic law and freedom its inevitable result. No longer was it true, as the Commons had once meekly declared, that "prerogatives of princes may easily and do daily grow; the privileges of the subject are for the most part at an everlasting stand." Constitutional law was developing out of the conflict; nay, more, was, with its precious rights and liberties firmly established, and a king had suffered death "for subverting the constitution of the realm."

Such work and struggle, let us not forget, were the begin

ning and basis of our American constitutions, as they were also the precedent, justification and incentive for our revolution and national existence. The thirteen colonics, now independent in fact, were wholly dependent in law, upon their charters and the constitution and common law of England. This made with them constitution building a necessity. I have already sketched the connection of our carly charters and later constitutions with the organic law of our English ancestors. In them is the same recognition of the principles of control and compact, only with larger growth and fuller development.

Out of the necessity and principle of control has come our frame of government, national and state, with its divisions and functions carefully arranged and specified; and control modified by compact has made this representative and self-government. All that secures this, necessarily, has place in a constitution, because, necessarily, fundamental law; and within it, as even more fundamental, are properly found regulations of the suffrage, by whom and how it shall be exercised. The constitution of the body politic must precede the exercise of power by it, and if not as permanently fixed as the law it makes, becomes the helpless subject of its own creation. Any policy, therefore, approved by the people, which deals with the qualifications or exercise of the suffrage, or affects the frame of government or changes its scope or functions, has its proper place in constitutional law. Should, for example, the doctrines of Socialism or Nationalism ever prevail, they should, because of their radical change of the purpose and principles of our government, find expression in constitutional law. Our excellent Australian ballot law, controlling the exercise of the fundamental right of suffrage, might well have its principle embodied in the constitution, leaving its details for legislative

enactment.

A constitution then necessarily defines the body politic and creates a government, and properly contains in principle, at least, whatever law is to control them. But it also must secure individual liberty so far as is consistent with such government and the rights of others, recognizing, in the words of Herbert Spencer, "that every man may claim the fullest liberty to