Hohenzollern and later the Hapsburger gave way, and by 1880 practically every Christian state of the continent save Russia was governed under a written constitution.

During the agitations and conflicts that attended the progress to this end, theoretical debate developed new and striking doctrines only as to the content, not as to the desirability, of the written code. There was the greatest diversity among the actual constitutions in the organization and action of the governments. In every state there was continuous strife between parties demanding the application of liberal and conservative interpretations respectively to the fundamental law, or the expansion of that law in the sense of their particular interests. As to the essential requirements of constitutional government, theory was practically unanimous in holding that there must be, first, some guarantee of rights to the individual, and second, a a separation of legislative, executive and judicial powers. It was further held by all but the ultra-conservatives that rational government required the participation of some form of deliberative assembly representing in some way the body of the population. All these requirements had been understood and met in France in 1789 and the following years, but the swift progress of those years into anarchy remained a potent warning to the liberals of the next generation and interposed a barrier for decades against every suggestion of republicanism. Hence the chief problem of those who speculated on the theory of constitutional government was to find a safe and useful niche in the system for the monarch.

Thus until after 1848 the theories of the constitutional state, Rechtsstaat, as the Germans called it, were largely concerned with the effort to reconcile the functions of a representative assembly with those of a hereditary monarch, to insure the liberty of the subject individual against the historical and traditional omnipotence of the reigning individual, and to partition sovereignty neatly between the prince and the people or banish the troublesome concept from the ken of philosophy.

2. Types of the Realized Constitutions

The concrete provisions of the constitutions on certain fundamental points furnish a clear revelation of the theory that was prevalent. What is contained in the codes themselves as to the origin of their prescription and the power to modify them, as to the relation of the constitution to ordinary legislation and as to the part of the prince in the making and the execution of laws, furnishes the most useful path of approach to the speculative doctrines of the time.

France led off with the promulgation of a Charte Constitutionelle by Louis XVIII at his restoration in 1814. So far as this document itself furnished evidence, the authority on which it was based was the will of the monarch. To withdraw it or make changes in it of any kind whatever seemed equally in his discretion. He was, finally, the definite interpreter of its provisions in any doubt as to their meaning or operation. Under this last principle Charles X, in 1830, construed the clause giving the king the ordinance power as a warrant for decrees setting aside certain statutes and contravening the charter itself. The result was the revolution that put Louis Philippe on the throne. A revision of the charter was effected in connection with this event, and the phraseology of the instrument, like the proceedings by which the revolution was effected, disposed finally of the idea that the will of the monarch was the basis of the constitution, and gave most support to the doctrine that the fundamental law rested upon a compact between the king and the elected representatives of the people. To this system pertain those famous specimens of Gallic phrasemaking: "A throne surrounded by republican institutions" and "The king reigns but he does not govern." The constitution was no more successful than these ingenious party formulas in giving precision to the royal function. The politics of the July monarchy turned always on the critical question whether the superior power in the state should gravitate to the king or to the elected representatives of the people.

In many of the lesser states of Europe the course of events was much like that in France. Few princes, however, had as much success as Louis XVIII in imposing on their subjects

constitutions of exclusively royal origin. In most cases the fundamental law took shape as the result of a formal agreement between monarch and estates-general, and was treated by all parties as beyond amendment save by consent of all who were concerned in its establishment. As the old estates were superseded in the new constitution by the bicameral legislature, this organ became the co-ordinate factor with the monarch in the guardianship of the supreme law. Formal modification of the constitution required the joint action of parliament and crown; but the strong and resolute prince rarely failed to impress upon the established system, by interpretation and administrative practice, the principles that favored his own particular policies. The written constitutions of the nineteenth century proved little more effective than the unwritten law and custom of England in the seventeenth for the speedy and final elimination of the royal prerogative from the high places of authority.

A particularly good illustration of this is to be found in the early history of Prussia under the constitution of 1850. This instrument,' formulated by royal authority in agreement with representative bodies, was promulgated by Frederick William IV as fundamental law for the state. It embodied guarantees of individual rights on a generous scale and it assigned an important part in legislation to a chamber that was in some measure representative of the people. Both the terms of the constitution, however, and the interpretation that was at once adopted in practice maintained for the monarch a scope of authority that left no room for the intrusion of democracy, or for a transformation of the government from the royal to the parliamentary type. The principle of separation of powers, with check and balance in the interest of liberty, received no recognition. Executive power was ascribed to the king alone. Legislative power belonged jointly to the king and the two chambers. The judiciary was made wholly subject to the prescriptions of the law. Reinforcing the power thus insured to the monarch was the general authority to issue ordinances for the execution of the laws.

'English translation by Professor J. H. Robinson in Annals of the American Academy of Political and Social Science, vol. v, supplement.

In general the government in Prussia under the constitution continued to be, as before, a government by the king, subject only to the new condition that in matters of lawmaking he would act in conjunction with the chambers. How little this restriction meant when a critical issue arose was revealed in 1862 when Bismarck became the king's chief minister. It was explicitly laid down in the constitution that the revenues and expenditures of the state should be determined annually by the budget, which must be voted as law. For four years, however, during which the chambers would not agree with each other on any budget, the government administered the finances according to its unrestricted will. Certain grounds for this action were found in the constitution, though Bismarck afterwards admitted that they were without serious value. What really enabled him to carry through his policy against the violent opposition of the Liberal party was the steadfast assertion of the doctrine that the responsibility for the conduct of the government in Prussia was in last analysis in the king and that he must do his duty-in conformity with the constitution if possible, otherwise without reference to it."

In addition to this dogma of the general residuary power in the king, the monarchic principle had for its support in Prussia and elsewhere a special theory of the nature of law and legislation that was developed by the writers on public law. The common assumption that the participation of the chambers in legislation implied that their function in the matter was equal or superior in importance to that of the prince, was declared to be erroneous. A dual process is involved, so the argument ran, in what is commonly spoken of as lawmaking. First the

1 Article 100 of the constitution ran as follows: "Taxes and contributions to the public treasury shall be collected only in so far as they shall have been included in the budget, or authorized by special laws."

The technical question was, what should be done when the two houses could not agree on a measure indispensable to the existence of the government. The upper house of the legislature was controlled by the ministry and could thus readily be made the means for effecting a disagreement with the more popular chamber. Bismarck, having created this situation, took the high ground that the king must save the state from the anarchy threatened by the failure of the chambers to perform their duty.

content of an act of will is determined; second, the will is expressed in the form of a command. In only the first process do the chambers take part. They aid by their deliberations in fixing the content of the future law. But when their proceedings are entirely completed the result is by no means law. It still lacks the essential element-the command that subjects conform to the indicated rule or be punished. This final and decisive element it is the function of the king exclusively to supply through the performance of his duty to promulgate the laws. Only through this royal act is law technically "made." So long as this ultimate act remains the function of the monarch, it is idle to speak of sovereignty as resting anywhere but in him.'

Closely associated with this support of the monarchical principle was the distinction carefully worked out between statute and ordinance. So far as the prince was formally vested with the executive power, his right to issue commands that were incidental to the execution of the laws was conceded in all constitutions. But in practice the administration of public business in every governmental system required frequent acts of authority that could not be thought of as related to any specific expression of legislative will. Where constitution or statute set definite bounds to such acts, the ordinance power ceased; but within this limit there was room for the assertion of a degree of power that gave great support to the theory of monarchy. Charles X of France lost his throne through an attempt to extend the ordinance power reserved to him by the constitution so as to justify the contravention of constitution and law. In the amended constitution under which Louis Philippe assumed the crown it was specifically provided that the power to issue ordinances should not extend to suspending the laws or dispensing with their execution. This principle was incorporated in the widely influential Belgian constitution of 1830, through which it was ultimately passed on into the public law of many German states.2

1 For a clear exposition of this doctrine, which still is conspicuous in continental public law, see Jellinek, Gesetz und Verordnung, p. 312, et seq.

2 Jellinek, op. cit., p. 99.