neighbouring tribes, whose popular assemblies coalesced into one
assembly. As time went on, the flexibility of the constitution permitted
the extension of political rights to a number of communities which had
lain outside the old Roman territory. But the process presently stopped
(so far as effective political expansion was concerned), because the
representative system had not yet been invented. When after the great
revolt of the Allies in B.C. 90 Rome was compelled to grant full
citizenship to a large number of Italian communities, she did not take
what moderns might think the obvious course of creating a representative
assembly to which these allied communities might send elected delegates,
but merely distributed the new citizens among her old tribes, an
expedient which so far improved the position of the Allies that they
became legally equal to Roman citizens, and acquired thereby various
privileges and exemptions, but which extended to them practically no
share in the government, since few could not come to Rome to give their
votes in the assembly of the people. It may well have been that neither
the oligarchs nor the leaders of the so-called popular party at Rome
were willing to resign a substantial part of the power of the
inhabitants of the City, with the opportunities of bribing and being
bribed, in exchange for the primacy of a Federal or quasi-Federal
Italian republic. But that the notion of a representative assembly had
not crossed men’s minds appears from the circumstance that the Italian
Allies themselves, when in the course of their struggle they set up a
rival government, merely reproduced the general lines of the Roman
constitution, and did not create any representative council, excellently
as it might have served their purpose. So strong was the influence of
the idea of the city community in the ancient world, and (it may be
added) so little power of invention do mankind display in the sphere of
political institutions.
When an expanding State absorbs by way of treaty other communities
already enjoying a government more or less constitutional, the process
now usually takes the form of creating a Federation, and a Federation
almost necessarily implies a Rigid Constitution. Cases where the
Flexible Constitution of one State is stretched to take in another (as
the Constitution of England was stretched to take in Scotland) are rare.
The ancient Romano-Germanic Empire had a Flexible Constitution, which,
already in an advanced stage of decay, was extinguished by Napoleon.
When it was desired to re-establish a German Empire out of a number of
practically independent States, this had to be done by the creation of a
federal system under a Rigid Constitution. No similar device was
required in the case of Italy, because the communities which united
themselves to the kingdom of Sardinia between 1859 and 1871 had not
theretofore enjoyed constitutional government, had just dismissed their
whilome sovereigns, were all eager for union, and in their eagerness for
union cared but little for the maintenance of any local rights.
IX. THE ORIGIN OF RIGID CONSTITUTIONS.
We may now pass on to examine the other type of constitution, that for
which I have suggested the name Rigid, the specific character whereof
resides in the fact that every constitution belonging to it enjoys an
authority superior to the authority of the other laws of the State, and
can be changed only by a method different from that whereby those other
laws are enacted or repealed. This type is younger than the Flexible
type. The latter goes back to the very beginning of organized political
societies, being the first form which the organization of such societies
took. Rigid Constitutions, on the other hand, mark a comparatively
advanced stage in political development, when the idea of separating
fundamental laws from other laws has grown familiar, and when
considerable experience in the business of government and in political
affairs generally has been accumulated. Thus they have during the last
hundred years been far more in favour than constitutions of the Flexible
type.
In Europe they exist in every constitutional country except the United
Kingdom, Hungary, and Italy. There are none in the Asiatic continent,
but Asia, the cradle of civilization, possesses no constitutional
self-governing State whatever, except Japan, the Constitution of which,
established in 1889, bears some resemblance to that of the German
Empire. America, as a new continent, is appropriately full of them. The
Republic of the United States has not only presented the most remarkable
instance of this type in the modern world, but has by its success become
a pattern which other republics have imitated, just as most modern
States in the Old World took England for their model when they
established, during the nineteenth century, governments more or less
free. The Constitutions of all the forty-five States of the Union are
Rigid, being not alterable by the legislatures of those States
respectively. This is also true of the Constitution of the Dominion of
Canada, which is alterable only by the Imperial Parliament. The
Constitutions of the seven Canadian Provinces might, so far as their
legislatures are concerned, be deemed Flexible, being (except as
respects the office of Lieutenant-Governor) alterable by ordinary
provincial statutes, but as all Provincial statutes are subject to a
Dominion veto, they are not within the sole power of the legislatures.
Mexico and the five republics of Central America, together with the nine
republics of South America, have all adopted Constitutions which their
legislatures have not received power to change. Africa is the most
backward of the continents, but she has in the Orange Free State a tiny
republic living under a Rigid Constitution. It has been contended that
the Constitution of the South African Republic (Transvaal) is referable
to the same category, but it is really _de iure_, and it has always been
treated _de facto_, as being a Flexible Constitution[73]. The
Constitutions of the Australasian colonies present legal questions of
some difficulty, owing to the way in which the imperial Acts creating or
confirming them have been drawn. So far as the method of changing these
Constitutions has been prescribed by statutes of the colonies in which
they exist, it would appear that each can also be changed by the
legislature of the colony. Where those methods, however, are prescribed
by the British Parliament, or by instruments issuing from the Crown, the
point is more doubtful, and would need a fuller discussion than it can
receive here. Questions, however, touching the relations of a legally
subordinate to a legally supreme legislature lie in a different plane,
so to speak, from that with which we are here concerned: and we may say
that if these colonial constitutions are regarded solely as respects the
legislatures of the colonies themselves, they are referable to the
Flexible type. As to the new Federal Constitution of Australia there is
no doubt at all. It is Rigid[74], for any alteration in it requires a
majority of the States and a majority of the direct popular vote. All
the acts of every British colony are subject to a power of disallowance
by the Governor or the Crown, but (although it is sometimes provided
that constitutional acts shall be ‘reserved’ for the pleasure of the
Crown) this power is not confined to acts changing the constitution,
conformably to the English habit of drawing little distinction between
constitutional and other enactments.
-----
Footnote 73:
See Essay VII, p. 453.
Footnote 74:
See as to this Constitution Essay VIII, p. 523. As to the
Constitutions of the several Australian and other British colonies,
reference may be made to the book of the late Sir Henry Jenkyns,
entitled _British Rule and Jurisdiction beyond the Seas_, the
publication of which is announced for a very early date.
-----
All the above-mentioned constitutions are products of the last century
and a quarter, and it is doubtful whether there existed in A.D. 1776 any
independent State the constitution of which the ruling authority of that
State could not have changed in the same way in which it changed its
ordinary laws. The Swiss Confederation does not come into question, for
that Confederation was, until the French laid hands on it in the last
years of the eighteenth century, a League of States rather than a State,
and could not be said to have any constitution in the proper sense, not
to add that the republics of which the league consisted could alter the
terms of their league in the same way in which they had formed it. The
same remark applies to the confederation of the seven United Provinces
of the Netherlands.
The beginnings of Rigid Constitutions may, however, be traced back to
the seventeenth century. The first settlers in the British colonies in
North America lived under governments created by royal charters which
the colonial legislatures could not alter, and thus the idea of an
instrument superior to the legislature and to the laws it passed became
familiar[75]. In one colony (Connecticut) the settlers drew up for
themselves in 1638 a set of rules for their government, called the
Fundamental Orders. These Orders, developed subsequently into a royal
charter, were really a rudimentary constitution. And almost
contemporaneously the conception appeared in England during the Civil
War. The Agreement of the People, presented to the Long Parliament in
1647, contains in outline a Frame of Government for England which was
meant to stand above Parliament and be not changeable by it. So Oliver
Cromwell sought by his Instrument of Government, promulgated in 1653, to
create a Rigid Constitution, some at least of whose provisions were to
be placed beyond the reach of Parliament, and indeed apparently to be
altogether unchangeable. But his own Parliament refused to recognize any
part of it as outside their right of interference[76].
-----
Footnote 75:
Observations on this topic may be found in the author’s _American
Commonwealth_, chap. xxxvii.
Footnote 76:
These documents are printed in Dr. S. R. Gardiner’s _Constitutional
Documents of the Puritan Revolution_. A concise account of the
Instrument may be found in Mr. Goldwin Smith’s _United Kingdom_, vol.
i. pp. 605-8.
-----
From this rapid geographical survey we may now return to examine the
circumstances under which constitutions of this type arise. Their
establishment is usually due to one or more of the four following
motives:—
(1) The desire of the citizens, that is to say, of the part of the
population which enjoys political rights, to secure their own rights
when threatened, and to restrain the action of their ruler or rulers.
(2) The desire of the citizens, or of a ruler who wishes to please the
citizens, to set out the form of the pre-existing system of government
in definite and positive terms precluding further controversy regarding
it.
(3) The desire of those who are erecting a new political community to
embody the scheme of polity under which they propose to be governed, in
an instrument which shall secure its permanence and make it
comprehensible by the people.
(4) The desire of separate communities, or of distinct groups or
sections within a large (and probably loosely united) community, to
settle and set forth the terms under which their respective rights and
interests are to be safe-guarded, and effective joint action in common
matters secured, through one government.
Of these four cases, the two former arise where an existing State
changes its constitution. The two latter arise where a new State is
created by the gathering of individuals into a community, or by the
union of communities previously more or less separate into one larger
community, as for instance by the forming of a Federation.
Note further that Rigid Constitutions arise in some one of four possible
ways.
1. They may be given by a monarch to his subjects in order to pledge
himself and his successors to govern in a regular and constitutional
manner, avoiding former abuses. Several modern European constitutions
have thus come into being, of which that of the Kingdom of Prussia,
granted by King Frederick William the Fourth in 1850, is a familiar
example. The _Statuto_ or Fundamental Law of the Kingdom of Sardinia,
now expanded into the Kingdom of Italy, was at one time deemed another
instance. It is now, however, held to be a Flexible Constitution. Magna
Charta would have been a fragment of such a constitution had it been
legally placed out of the possibility of any change being made in it by
the Great Council, then the supreme legislature of England, but it was
enacted by the king in his Great Council, and has always been alterable
by the same authority. The _Charte Constitutionnelle_ for France issued
by Louis the Eighteenth in 1814, and renewed in an altered form on the
choice of Louis Philippe as king in 1830, and the Constitutions granted
by their respective kings to Spain and to Portugal, are similar
instances.
2. They may be created by a nation for itself when it has thrown off (or
been released from) its old form of government, and desires to create
another entirely _de novo_. The various Constitutions of the various
French Republics from 1790 downwards are instances, as is the
Constitution of the Orange Free State[77] and the present (A.D. 1901)
Constitution of Brazil. To this category also belong the Constitutions
of the original thirteen States of the American Union. Two of these
States, however, were content to retain the substance of the
charter-constitutions under which they had lived as British Colonies,
merely turning them into State constitutions, with nothing but the
Confederation above them, that Confederation being then a mere League
and not a National Government. The Constitution of the Austrian part of
the Austro-Hungarian monarchy may also be referred to this category. It
consists of five Fundamental Laws, enacted in 1867, and alterable by the
legislature only in a specially prescribed manner.
-----
Footnote 77:
See Essay VII, p. 432.
-----
3. They may be created by a new community, not theretofore a nation,
when it deliberately and formally enters upon organized political life
as a self-governing State, whether or no as also a member of any larger
political body. Such are the Constitutions of the States of the American
Union formed since 1790. Such was the original Constitution of Belgium,
a country which had been previously a part of the Kingdom of Holland.
Such is the Constitution of the Dominion of Canada, though it is a
peculiar feature of this instrument—and the same is true of the
Constitutions of all the self-governing British Colonies—that it has
been created not by the community which it regulates but by an external
authority, that of the Parliament of the United Kingdom, in a statute of
A.D. 1867. Being unchangeable by the Dominion Legislature, it is a Rigid
Constitution within the terms of our definition, although changeable,
like any other statute, by the British Parliament. The new Federal
Constitution of Australia belongs to the same class and had a like
origin[78].
-----
Footnote 78:
As to this Constitution see Essay VIII. Unlike the Constitution of
Canada, it can be amended by the people of Australia without the aid
of the Imperial Parliament.
-----
4. They may arise by the tightening of a looser tie which has
theretofore existed between various self-governing communities. When
external dangers or economic interests have led such communities to
desire a closer union than treaties or federative agreements have
previously created, such communities may unite themselves into one
nation, and give that new nation a government by means of an instrument
which is thereafter not only to hold them together but to provide for
their action as a single body. This process of turning a League of
States (_Staatenbund_) into a Federal State (_Bundesstaat_) is
practically certain to create a Rigid Constitution, for the component
communities which are so uniting will of course desire that the rights
of each shall be safeguarded by interposing obstacles and delays to any
action tending to change the terms of their union, and they will
therefore place the constitution out of the reach of amendment by the
ordinary legislature. Cases may, however, be imagined in which the
component communities might be willing to forgo this safeguard. The
Achaean League did so; and its constitution was therefore a flexible
one, but then the Achaean League can hardly be said to have been a
single State in the strict sense of the word. It was rather a league,
though a close league, of States, like the Swiss Confederation in the
eighteenth century.
The most familiar instances of this fourth kind of origin are the United
States of North America, the Federation of Mexico (unless it be referred
to the second class), and the present Swiss Confederation. To this class
may also be referred the very peculiar case of the new German Empire,
which by two steps, in 1866 and in 1871, has created itself out of the
pre-existing Germanic Confederation of 1815, that Confederation having
been formed by the decay into fragments of the ancient East Frankish or
German kingdom, which had, throughout the Middle Ages, a Flexible
Constitution resembling that of the England or France or Castile of the
thirteenth century.
X. THE ENACTMENT AND AMENDMENT OF RIGID CONSTITUTIONS.
Before proceeding to consider the methods by which these constitutions
may be enacted and changed, it is worth while to suggest an explanation
of their comparative recent appearance in history. Documentary
constitutions, _i.e._ those contained in one or several instruments
prepared for the purpose, are old. There were many of them in the Greek
cities; and efforts were sometimes made when they were enacted to secure
their permanence by declaring them to be unchangeable. But in the old
days when City States (and sometimes also small Rural States) were ruled
by Primary Assemblies, consisting of all free citizens, there was no
authority higher than the legislature that could be found to enact a
constitution, seeing that the legislature consisted of the whole body of
the citizens. In those days, accordingly, when it was decided to give
peculiar permanence to some political arrangement, so that no subsequent
assembly of the people should upset it, two expedients were resorted to.
One was to make all the leading men, perhaps the whole people, swear
solemnly to maintain it, and thereby to bring in the deities of the
States as co-enacting or at least protecting and guaranteeing parties.
Tradition attributed this expedient to Lycurgus at Sparta. The other was
to provide in the law intended to be Fundamental that no proposal to
repeal it should ever be entertained, or to declare a heavy penalty on
the audacious man who should make the proposal. The objection to both
these expedients was that they debarred any amendment, however
desirable, and however generally desired. Hence they were in practice
little regarded, though the exceptionally pious or superstitious
Spartans were deemed to be largely deterred from governmental changes by
the fear of divine disapproval. Moreover, the second of the above-named
devices or barriers could be easily turned by proposing to repeal, not
the Fundamental law itself, but the prohibition and the penalty. These
having been repealed—and of course the proposal would not be made unless
its success were pretty well assured—the Fundamental Law would then
itself be forthwith repealed. It must, however, be added that even if
the Greek cities had adopted what seems to us the obvious plan of
requiring a certain majority of votes (say two-thirds) for a change in
the Fundamental Law, or had required it to be passed by four Assemblies
in succession at intervals of three months, one may doubt whether such
provisions would have restrained a majority in communities which were
small, excitable, and seldom legally-minded.
Those who have suggested that the United Kingdom ought to embody certain
parts of what we call the British Constitution in a Fundamental Statute
(or Statutes) and to declare such a statute unchangeable by Parliament,
or by Parliament acting under its ordinary forms, seem to forget that
the Act declaring the Fundamental Statute to be Fundamental and
unchangeable by Parliament would itself be an Act like any other Act,
and could be repealed by another ordinary statute in the ordinary way.
All that this contrivance would obtain would be to interpose an
additional stage in the process of abolition or amendment, and to call
the attention both of the people and the legislature in an emphatic way
to the fact that a very solemn decision was being reversed. Some may
think that such a security, if imperfect, would be worth having. The
restraint imposed would, however, be a moral not a legal one[79].
-----
Footnote 79:
Soon after the above lines were written, the point they deal with came
up in Parliament in a practical form. In the debate on the Irish Home
Rule Bill of 1886 the question emerged whether Parliament could in
constituting a legislature for Ireland and assigning to that
legislature a certain sphere of action legally debar itself from
recalling its grant or from legislating, upon matters falling within
that sphere, over the head of the Irish legislature. It was generally
agreed by lawyers that Parliament could not so limit its own powers,
and that no statute it might pass could be made unchangeable, or
indeed could in any way restrict the powers of future Parliaments.
Upon the general question whether Parliament could so enact any new
Constitution for the United Kingdom as to debar itself from
subsequently repealing that Constitution, it may be suggested, for the
consideration of those who relish technicalities, that Parliament
could, if so disposed, divest itself of its present authority by a
sort of suicide, _i.e._ by repealing all the statutes under which it
is now summoned, and abolishing the common-law right of the Crown to
summon it, and thereupon causing itself to be forthwith dissolved,
having of course first provided means for summoning such an assembly,
or assemblies, as the new Constitution created. There would then be no
legal means of summoning another Parliament of the old kind, and the
new Constitution, whatever it was, would therefore not be liable to be
altered save in such manner as its own terms provided.
-----