INTRODUCTORY NOTE

ON THE CONSTITUTION

the word

DE TOCQUEVILLE declared that the English Constitution Different did not really exist,' and he said so because in his mind Meanings of the word "constitution" meant a perfectly definite thing to Constituwhich nothing in England conformed. An examination of modern governments shows, however, that the thing is by no means so definite as he had supposed.

tion.

ment Embodying the

tutions.

The term "constitution" is usually applied to an attempt A Docuto embody in a single authoritative document, or a small group of documents, the fundamental political institutions Chief Instiof a state. But such an attempt is rarely, if ever, completely successful; and even if the constitution when framed covers all the main principles on which the government is based, it often happens that they become modified in practice, or that other principles arise, so that the constitution no longer corresponds fully with the actual government of the country. In France, for example, the principle that the cabinet can stay in office only so long as it retains the confidence of the popular chamber, the principle, in short, of a ministry responsible in the parliamentary sense, was not mentioned in the charters of 1814 or 1830, and yet it was certainly firmly established in the reign of Louis Philippe; and it is noteworthy that this same principle, on which the whole political system of the English self-governing colonies is based, appears neither in the British North American Act nor in the Australian Federation Act. The first of those statutes, following the English tradition, speaks of the Privy Council for Canada, but never of the cabinet or the ministers; while the Australian Act, going a step farther, refers to the Queen's Ministers of State, but ignores their

2

3

1 La Démocratie en Amérique, I., Ch. vi.

230-31 Vic., c. 3, § 11.

63-64 Vic., c. 12, Const., §§ 64-65.

responsibility to the parliament.' Again, in the United States, the provision that the electoral college shall choose the President has become so modified in practice that the electors must vote for the candidate nominated by the party to which they owe their own election. In choosing the President they have become, by the force of custom, as much a mere piece of mechanism as the Crown in England when giving its assent to acts passed by the two Houses of Parliament. Their freedom of choice is as obsolete as the royal veto. So far, therefore, as this meaning of the term is concerned, the constitution of England differs from those of other countries rather in degree than in kind. It differs in the fact that the documents, being many statutes, are very numerous, and the part played by custom is unusually large.

Not Change- De Tocqueville had more particularly in mind another able by meaning which is commonly attached to the term "constituOrdinary Legislation. tion." It is that of an instrument of special sanctity, distinct in character from all other laws; and alterable only by a peculiar process, differing to a greater or less extent from the ordinary forms of legislation. The special sanctity is, of course, a matter of sentiment incapable of exact definition, and it may be said to belong to the British Constitution quite as much as to some others. The peculiar process of amendment, on the other hand, -the separation of the so-called constituent and law-making powers, - upon which Mr. Bryce bases his division of constitutions into rigid and flexible, has had a long history and been much discussed; but although the contrast between the two types is highly important, the creation of intermediate forms has made it less exact as a basis of classification. The later constitutions, and the more recent practice, have tended to obscure the distinction. A separation between

'The provisions about the responsibility of the ministers are almost identical in the constitutions of Belgium (Arts. 63, 64, 65, 88, 89, 90) and Prussia (Arts. 44, 45, 60, 61); but in Belgium the cabinet is politically responsible to the chamber, while in Prussia it is not.

"Studies in History and Jurisprudence," Essay III,

Flexible

the constituent and law-making powers does not, in fact, Rigid and always exist in written constitutions. The Italian Statuto, Constitufor instance, which contains no provision for amendment, tions. can be, and in fact has been, altered by the ordinary process of legislation; and the same thing was true of the French Charter of 1830.2 The last Spanish constitution omits all provision for amendment, but one may assume that if it lasts long enough to require amendment the changes will be made by ordinary legislative process.

From countries which can change their fundamental constitution by the ordinary process of legislation we pass by almost imperceptible degrees to those where the constitutional and law-making powers are in substantially different hands. Thus the procedure for changing the constitution in Prussia differs from that for the enactment of laws only by the requirement of two readings at an interval of twenty-one days. Here there is a difference legally perceptible between the methods of changing the constitution and other laws; but it may be remarked that a provision in the constitution to the effect that all laws should require two readings at an interval of twenty-one days, would not essentially change the nature of the constitution, and yet in theory it would make that constitution flexible instead of rigid. As it is, the fundamental laws are quite as much under the control of the legislature in Prussia as they are in England. This is almost equally true of France; for although the changes in her constitution are made by the National Assembly, composed of the two chambers sitting together, yet the Assembly can meet only after the two chambers have passed a concurrent resolution to that

1

1Cf. Brusa, Italien, in Marquardsen's Handbuch des Oeffentlichen Rechts, 12-16, 181-82.

1 Professor Dicey points out ("Law of the Constitution," 5 Ed., 116 and Note 2) that De Tocqueville considered the Charter unalterable by reason of this omission, but that it was, in fact, changed like an ordinary law.

For the purpose of the argument it is unimportant that Prussia is not a sovereign state, and for sixteen years it did exist as an independent sovereign state under its present constitution.

The Dis

Lost Practical Importance.

effect; and in fact the chambers are in the habit of determining beforehand by separate votes the amendments which shall be submitted to the Assembly. So that in France, also, the constitution is virtually under the unrestricted control of the legislature.

The separation of constituent and law-making powers tinction has has been rendered of much less practical importance in some countries not only by making the process of amending the constitution more simple, but also by making the enactment of laws more complex. In Switzerland, for example, changes in the Constitution of 1848 required a popular vote, while changes in the laws did not; but after the referendum on ordinary laws was introduced in 1874, this distinction largely disappeared, and at the present day the differences between the methods of passing constitutional amendments and ordinary laws are comparatively slight. In the case of ordinary laws a popular vote is taken only on the petition of thirty thousand citizens or eight cantons, and the popular majority is decisive; whereas constitutional amendments must be submitted to the people whether a petition is pre-f sented or not, and for their ratification a majority vote in more than half the cantons as well as a majority in the Confederation as a whole is required.1

In those European countries where the difference in the procedure for changing constitutional and other laws is the most marked, the special formalities for the former consist in requiring more than a majority vote in the legislature, or that a general election shall take place before the amendment is finally adopted, or both. Now the last of those conditions is practically not unknown in England. There is a growing feeling that no fundamental or far-reaching change ought to be made unless, as a result of a general election fought on that issue, Parliament has received from the nation a mandate to make the change. Such a doctrine does not affect the law, but it does affect that body

1 Constitutional amendments can also be proposed by popular initiative, and ordinary laws cannot.