CHAPTER I

CONSTITUTIONS AND CONSTITUTION-MAKING

WITH but few exceptions the governments of to-day are based upon fundamental charters known as constitutions. A constitution has been defined as "the fundamental law according to which the government of a state is organized and the relations of individuals with society as a whole are regulated." It may be either a document or a collection of acts promulgated at a certain time, or it may be the result of a series of legislative acts, judicial decisions, precedents, and customary regulations. Most of the constitutions of to-day consist of a single document. But the English Constitution, the one from which all the others are in a certain sense derived, has never been put into systematic form.1

THE ORIGIN OF CONSTITUTIONS

The written constitution is a comparatively new device in government. However, the distinction between certain laws that are fundamental and permanent and others that are temporary and changeable is indeed an ancient idea. This distinction was recognized in Greece and in Rome, and was made more definite and specific in the Middle Ages when the ancient law of nature was supplemented by the law of God to give strength and permanence to the rules and regulations laid down by the Church. But while the distinction between fundamental and permanent laws and

1 See Charles Borgeaud, The Nature and Adoption of Written Constitutions (The Macmillan Company, 1895), Preface, p. xv,

ordinary legislative or executive acts was recognized in ancient and mediæval times, no clear dividing line was designated between the laws which were fundamental and those which were temporary. There were no written documents to set off the permanent from the temporary laws. It was not until the middle of the eighteenth century that the distinction between fundamental law and temporary statutory law was rendered specific by French and English authors. The distinction was most clearly presented in Vattel's volume on The Law of Nations, which appeared in France in 1773, was translated into English, and was widely read in England and in America. Vattel declared that

...

the laws made directly with a view to the public welfare are political laws; and in this class, are those that concern the body itself and the being of society, the form of government, the manner in which the public authority is to be exerted, those, in a word, which together form the constitution of the state, are the fundamental laws.1

These fundamental laws, Vattel maintained, are not to be changed by the legislature, and are to be regarded as inviolable except at the wish of the nation itself. This doctrine, supported as it was by the mediæval theory of the law of nature, regarded superior to and above the ordinary laws, and strengthened by Sir Edward Coke's theory that the common law was superior to both king and Parliament, led to the development of the idea that the fundamental laws must be put into the form of a well-defined and clearly written document. The instrument of government prepared by Cromwell appears to be one of the first documents of this kind.

Written constitutions in the sense in which they are regarded to-day originated, however, with the American colonies, when they repudiated the governments established under their charters with England and set about to establish new governments. An effort was made to preThe Law of Nations (Trans. London, 1797), p. 9.

pare in brief written form the fundamental rules and regulations in accordance with which the government was to be conducted. A great impetus was given to the notion of instituting governments founded on written constitutions by the formation and adoption of the Federal Constitution, 1787-89. Very soon thereafter, the revolutionary governments of France attempted to base public authority upon fundamental written laws. South and Central American countries have adopted constitutions modeled in some respects after the American charters. The majority of European countries have also formulated a fundamental document for the guidance of political authority, with the exception of England and Hungary, in which no written instruments such as those adopted in the United States have ever been formulated. The distinction between the constitution and ordinary law in the latter countries is not well defined. The movement for the adoption of a written constitution has extended not only into Europe and America, but also into Asia and Africa. Among recently adopted constitutions are those of Japan, of China, and of the South African Union. Likewise, the self-governing colonies of Canada and Australia have organized their government on the basis of written fundamental laws, which are superior to ordinary enactments. The newly formed provinces of Central Europe are engaged in the drafting of written fundamental laws. Thus, the development of written constitutions is one of the leading characteristics of the eighteenth and nineteenth centuries, and constitutes one of the greatest achievements in government organization.

TYPES OF CONSTITUTIONS

The distinction between such countries as England, where the constitution is unwritten and where no separate document has ever been issued containing the fundamental law, and the United States, with a written constitution, has probably been exaggerated. While England has no

definite written document, most of the matters of fundamental importance have been dealt with in special statutory enactments which may be looked upon as forming a constitution; whereas in the United States matters not covered in the fundamental law are also treated in statutes. In the words of James Bryce, "Whether the constitution be written or unwritten, provision must be made for its growth and the written constitution must necessarily grow just as well as the unwritten constitution." The efficacy of written documents in securing good government was very much exaggerated in the eighteenth and nineteenth centuries. It is a noteworthy fact that two of the greatest political crganizations of all times, those of Rome and of England, were not based on written instruments. Certain South American nations have shown how an elaborately drawn document can be readily ignored and governments conducted, notwithstanding such documents, according to the wishes of dominant cliques. On the other hand, the political bonds between England and the self-governing colonies demonstrate that an intricate political mechanism can operate successfully with very few written formulations.

The former distinction between written and unwritten constitutions has been demonstrated to be more one of degree than of kind. In fact, all constitutions are contained in documents, statutes, and numerous written evidences of law and custom which are uniformly accepted as a guide for public officers. Thus, the English constitution is largely written, only it is not found in a single instrument. It is embodied in many documents and statutes, and the part played by custom is unusually large. On the other hand, states having so-called written constitutions have so much of custom, tradition, judicial, legislative, and executive interpretation entering in with the written document that the constitutional law of the country must be sought in

1 James Bryce, Studies in History and Jurisprudence (Oxford University Press, 1901), vol. i, pp. 139 ff.

2 A. Lawrence Lowell, Government of England (The Macmillan Company, 1910), vol. i, Introductory Note,

For

many sources as well as in the written instrument. example, in the United States political parties and the President's Cabinet are not dealt with in the fundamental law, yet each of these is a very important and integral part of the government. We may think, says Judge Cooley, "that we have the Constitution all before us; but for practical purposes, the Constitution is that which the government in its several departments and the people in the performance of their duties as citizens recognize and respect as such."

A further distinction has been made between constitutions which are flexible and those which are rigid. The basic difference in this regard is to be found in the constitution of England, which is subject to change by an ordinary act of Parliament, and the Constitution of the United States, which requires a special procedure and extraordinary majorities to pass constitutional amendments. But there is a tendency for this distinction to disappear. When the process of constitution-changing involves a different organization, larger majorities, or other distinguishing marks from the passage of ordinary legislation it is possible to separate the constituent or constitution-making function from legislation and thus to recognize degrees of rigidity or flexibility in changing the fundamental law. But some states, such as Italy, do not separate the constituent and the legislative functions. The Italian constitution, with no provision for amendment, is changed by an ordinary legislative act. Furthermore in Switzerland and certain American states the constitution may be amended by the initiative and referendum under the same regulations as those set forth for the passage of ordinary statutes. In such states it is impossible to draw a well-defined line between constituent and legislative powers. Moreover, there is a distinct tendency to make all constitutions easier to amend and thus to obliterate the distinction between flexible and rigid constitutions.

The chief types of constitutions are exemplified in the