nment actually in operation since the
adoption of the Fundamental Orders.

[Sidenote: Germinal development of the colonial charter toward the
modern state constitution.]
In those colonies which had charters these documents served, to a
certain extent, the purposes of a written constitution. They limited the
legislative powers of the colonial assemblies. The question sometimes
came up as to whether some statute made by the assembly was not in
excess of the powers conferred by the charter. This question usually
arose in connection with some particular law case, and thus came before
the courts for settlement,--first before the courts of the colony;
afterwards it might sometimes be carried on appeal before the Privy
Council in England. If the court decided that the statute was in
transgression of the charter, the statute was thereby annulled.[6] The
colonial legislature, therefore, was not a supreme body, even within the
colony; its authority was restricted by the terms of the charter. Thus
the Americans, for more than a century before the Revolution, were
familiarized with the idea of a legislature as a representative body
acting within certain limits prescribed by a written document. They had
no knowledge or experience of a supreme legislative body, such as the
House of Commons has become since the founders of American states left
England. At the time of the Revolution, when the several states framed
new governments, they simply put a written constitution into the
position of supremacy formerly occupied by the charter. Instead of a
document expressed in terms of a royal grant, they adopted a document
expressed in terms of a popular edict. To this the legislature must
conform; and people were already somewhat familiar with the method of
testing the constitutionality of a law by getting the matter brought
before the courts. The mental habit thus generated was probably more
important than any other single circumstance in enabling our Federal
Union to be formed. Without it, indeed, it would have been impossible to
form a durable union.

[Footnote 6: Bryce, _American Commonwealth_, vol. i. pp. 243,
415.]

[Sidenote: Abnormal development of the state constitution, encroaching
upon the province of the legislature.]
[Sidenote: The Swiss "Referendum" 196]
Before pursuing this subject, we may observe that American state
constitutions have altered very much in character since the first part
of the present century. The earlier c