Chapter III: Front Matter (3)

CONSTITUTION AND CONSTITUTIONAL LAW. The word constitution (_constitutio_) in the time of the Roman empire signified a collection of laws or ordinances made by the emperor. We find the word used in the same sense in the early history of English law, _e.g._ the Constitutions of Clarendon. In its modern use constitution has been restricted to those rules which concern the political structure of society. If we take the accepted definition of a law as a command imposed by a sovereign on the subject, the constitution would consist of the rules which point out where the sovereign is to be found, the form in which his powers are exercised, and the relations of the different members of the sovereign body to each other where it consists of more persons than one. In every independent political society, it is assumed by these definitions, there will be found somewhere or other a sovereign, whether that sovereign be a single person, or a body of persons, or several bodies of persons. The commands imposed by the sovereign person or body on the rest of the society are positive laws, properly so called. The sovereign body not only makes laws, but has two other leading functions, viz. those of judicature and administration. Legislation is for the most part performed directly by the sovereign body itself; judicature and administration, for the most part, by delegates. The constitution of a society, accordingly, would show how the sovereign body is composed, and what are the relations of its members _inter se_, and how the sovereign functions of legislation, judicature and administration are exercised. Constitutional law consists of the rules relating to these subjects, and these rules may either be laws properly so called, or they may not--i.e. they may or may not be commands imposed by the sovereign body itself. The English constitutional rule, for example, that the king and parliament are the sovereign, cannot be called a law; for a law presupposes the fact which it asserts. And other rules, which are constantly observed in practice, but have never been enacted by the sovereign power, are in the same way constitutional laws which are not laws. It is an undoubted rule of the English constitution that the king shall not refuse his assent to a bill which has passed both Houses of Parliament, but it is certainly not a law. Should the king veto such a bill his action would be unconstitutional, but not illegal. On the other hand the rules relating to the election of members to the House of Commons are nearly all positive laws strictly so called. Constitutional law, as the phrase is commonly used, would include all the laws dealing with the sovereign body in the exercise of its various functions, and all the rules, not being laws properly so called, relating to the same subject.

The above is an attempt to indicate the meaning of the phrases in their stricter or more technical uses. Some wider meanings may be noticed. In the phrase constitutional government, a form of government based on certain principles which may roughly be called popular is the leading idea. Great Britain, Switzerland, the United States, are all constitutional governments in this sense of the word. A country where a large portion of the people has some considerable share in the supreme power would be a constitutional country. On the other hand, constitutional, as applied to governments, may mean stable as opposed to unstable and anarchic societies. Again, as a term of party politics, constitutional has come to mean, in England, not obedience to constitutional rules as above described, but adherence to the existing type of the constitution or to some conspicuous portions thereof,--in other words, conservative.

The ideas associated with constitution and constitutionalism are thus, it will be seen, mainly of modern and European origin. They are wholly inapplicable to the primitive and simple societies of the present or of the former times. The discussion of forms of government occupies a large space in the writings of the Greek philosophers,--a fact which is to be explained by the existence among the Greeks of many independent political communities, variously organized, and more or less democratic in character. Between the political problems of the smaller societies and those of the great European nations there is no useful parallel to be drawn, although the predominance of classical learning made it the fashion for a long time to apply Greek speculations on the nature of monarchy, aristocracy, and democracy to public questions in modern Europe. Representation (q.v.), the characteristic principle of European constitutions, has, of course, no place in societies which were not too large to admit of every free citizen participating personally in the business of government. Nor is there much in the politics or the political literature of the Romans to compare with the constitutions of modern states. Their political system, almost from the beginning of empire, was ruled absolutely by a small assembly or by one man.

The impetus to constitutional government in modern times has to a large extent come from England, and it is from English politics that the phrase and its associations have been borrowed. England has offered to the world the one conspicuous example of a long, continuous, and orderly development of political institutions. The early date at which the principle of self-government was established in England, the steady growth of the principle, the absence of civil dissension, and the preservation in the midst of change of so much of the old organization, have given its constitution a great influence over the ideas of politicians in other countries. This fact is expressed in the proverbial phrase--"England is the mother of parliaments." It would not be difficult to show that the leading features of the constitutions now established in other nations have been based on, or defended by, considerations arising from the political history of England.

In one important respect England differs conspicuously from most other countries. Her constitution is to a large extent _unwritten_, using the word in much the same sense as when we speak of unwritten law. Its rules can be found in no written document, but depend, as so much of English law does, on precedent modified by a constant process of interpretation. Many rules of the constitution have in fact a purely legal history, that is to say, they have been developed by the law courts, as part of the general body of the common law. Others have in a similar way been developed by the practice of parliament. Both Houses, in fact, have exhibited the same spirit of adherence to precedent, coupled with a power of modifying precedent to suit circumstances, which distinguishes the judicial tribunals. In a constitutional crisis the House of Commons appoints a committee to "search its journals for precedents," just as the court of king's bench would examine the records of its own decisions. And just as the law, while professing to remain the same, is in process of constant change, so, too, the unwritten constitution is, without any acknowledgment of the fact, constantly taking up new ground.

In contrast with the mobility of an unwritten constitution is the fixity of a constitution written out, like that of the United States or Switzerland, in one authoritative code. The constitution of the United States, drawn up at Philadelphia in 1787, is contained in a code of articles. It was ratified separately by each state, and thenceforward became the positive and exclusive statement of the constitution. The legislative powers of the legislature are not to extend to certain kinds of bills, e.g. _ex post facto_ bills; the president has a veto which can only be overcome by a majority of two-thirds in both Houses; the constitution itself can only be changed in any particular by the consent of the legislatures or conventions of three-fourths of the several states; and finally the judges of the Supreme Court are to decide in all disputed cases whether an act of the legislature is permitted by the constitution or not.

The constitution of the United States is the supreme law of the land as to the matters which it embraces. The constitution of each state is the supreme law of the state, except so far as it may be controlled by the constitution of the United States. Every statute in conflict with the constitution to which it is subordinate is void so far as this conflict extends. If it concerns only a distinct and separable part of the statute, that part only is void. Every court before which a statutory right or defence is asserted has the power to inquire whether the statute in question is or is not in conflict with the paramount constitution. This power belongs even to a justice of the peace in trying a cause. He sits to administer the law, and it is for him to determine what is the law. Inferior courts commonly decline to hold a statute unconstitutional, even if there may appear to be substantial grounds for such a decision. The presumption is always in favour of the validity of the law, and they generally prefer to leave the responsibility of declaring it void to the higher courts.

The judges of the state courts are bound by their oath of office to support the constitution of the United States. They have an equal right with those of the United States to determine whether or how far it affects any matter brought in question in any action. So, vice versa, the judges of the United States courts, if the point comes up on a trial before them, have the right to determine whether or how far the constitution of a state invalidates a statute of the state. They, however, are ordinarily bound to follow the views of the state courts on such a question. They are not bound by any decision of a state court as to the effect of the constitution of the United States on a state statute or any other matter. This judicial power of declaring a statute void because unconstitutional has been not infrequently exercised, from the time when the first state constitutions were adopted.

Juries in criminal causes are sometimes made by American statutes or recognized by American practice as judges of the law as well as the fact. The better opinion is that this does not make them judges of whether a law on which the prosecution rests violates the paramount constitution and is therefore void (_United States_ v. _Callender_, Wharton's _State Trials_, 688; _State_ v. _Main_, 69 Connecticut Reports, 123, 128).

If a state court decides a point of constitutional law, set up under the constitution of the United States, against the party relying upon it, and this decision is affirmed by the state court of last resort, he may sue out a writ of error, and so bring his case before the Supreme Court of the United States. If the state decision be in his favour, the other side cannot resort to like proceedings.

A decree of the Supreme Court of the United States on a point of construction arising under the constitution of the United States settles it for all courts, state and national.

The salient characteristic of the United States constitution is, perhaps, its formidable apparatus of provisions against change; and, in fact, only 15 constitutional amendments had been adopted from 1789 up to 1909, the last being in 1870. In the same period the unwritten constitution of England has made a most marked advance, chiefly in the direction of democratizing the monarchy, and diminishing the powers of the House of Lords. The House of Commons has continuously asserted its legislative predominance, and has reduced the other House to the position of a revising chamber, which in the last resort, however, can produce a legislative deadlock, subject to the results of a new general election (see Parliament). And the cabinet, which depends on the support of the House of Commons, has become more and more the executive council of the realm. One conspicuous feature of the English constitution, by which it is broadly distinguished from written or artificial constitutions, is the presence throughout its entire extent of legal fictions. The influence of the lawyers on the progress of the constitution has already been noticed, and is nowhere more clearly shown than in this peculiarity of its structure. As in the common law, so in the constitution, change has been effected in substance without any corresponding change in terminology. There is hardly one of the phrases used to describe the position of the crown which can be understood in its literal sense, and many of them are currently accepted in more senses than one. The American constitution of 1789 reproduced, however, in essentials, and with necessary modifications, the contemporary British model, and, where it did so, has preserved the old conception of what was then the British system of Government. The position and powers of the president were a fair counterpart of the royal prerogative of that day; the two houses of Congress corresponded sufficiently well to the House of Lords and the House of Commons, allowing for the absence of the elements of hereditary rank and territorial influence. While the English constitution has changed much, the American constitution has changed very little in these respects. Allowing for the more democratic character of the constituencies, the organization of the supreme power in the United States is nearer the English type of the 18th century--is, in fact, less elastic than in the United Kingdom.

On the other hand, it is not uncommon to misinterpret the rigidity of the United States constitution, from a regard rather to the theory which its text suggests than to the practical working of the machine. For the letter of the constitution has to some extent been modified, if not technically amended, in various respects by judicial interpretation, and by use and wont (e.g. as regards the election of the president). This side of the matter may be studied in C. G. Tiedeman's work cited below. Moreover, even in respect of the 18th-century British character attaching to the constitution, as drawn up in 1787, it has to be remembered that this was not taken direct from England. As several American constitutional historians have elaborately shown (e.g. A. C. McLaughlin, in _The Confederation and the Constitution_, 1905), the English idea had already been developed in various directions during the preceding colonial period, and the constitution really represented the English constitutional usage _as known in America_, into which the Philadelphia convention introduced new features corresponding to the prevailing civil conditions or suggested by English analogy. It is important to emphasize this point, since the resemblance of the American constitution of 1789 to the contemporary English constitution has sometimes been exaggerated; but the fact remains that the written constitution has been less susceptible of development than the unwritten.

Between England and some other constitutional countries a difference of much constitutional importance is to be found in the terms on which the component parts of the country were brought together. All great societies have been produced by the aggregation of small societies into larger and larger groups. In England the process of consolidation was completed before the constitution settled down into its present form. In the United States, on the other hand, in Switzerland, and in Germany the constitution is in form an alliance among a number of separate states, each of which may have a constitution and laws of its own for local purposes. In federal governments it remains a question how far the independence of individual states has been sacrificed by submission to a constitution. In the United States constitutional progress is hampered by the necessity thus created of having every amendment ratified by the separate vote of three-fourths of the states.

See also Government; Sovereignty; Cabinet; Prerogative, &c., and the
section on Government or Constitution in the articles on the various
countries. The standard work on the English constitution is Sir
William Anson's _Law and Custom of the Constitution_ (1st ed. 1886;
3rd ed. 1909); see also A. L. Lowell, _The Government_ _of England_
(1908); W. Bagehot, _The English Constitution_; S. Low, _The
Governance of England_ (1904); A. V. Dicey, _The Law of the
Constitution_ (7th ed. 1909); W. Stubbs, _Constitutional History of
England_ (1878); R. Gneist, _History of the English Constitution_
(Engl. trans. 1886); J. Macy, _The English Constitution_ (New York,
1897); E. W. Ridges, _Constitutional Law of England_ (1905); F. W.
Maitland, _Constitutional History of England_ (1908); G. B. Adams and
H. M. Stephens, _Select Documents of English Constitutional History_
(New York, 1901). For America, see C. E. Stevens, _Sources of the
Constitution of the United States_ (London and New York, 1894); G. T.
Curtis, _Constitutional History of the United States_ (2 vols., New
York, 1889-1896); T. McI. Cooley, _General Principles of
Constitutional Law in the United States_ (Boston, 1880; 3rd ed.
1898); S. G. Fisher, _Evolution of the Constitution of the United
States_ (Philadelphia, 1897); J. I. C. Hare, _American Constitutional
Law_ (2 vols., Boston, 1889); J. F. Jameson (ed.), _Essays on the
Constitutional History of the United States in the Formative Period,
1775-1789_ (Boston, 1889); W. M. Meigs, _Growth of the Constitution
in the Federal Convention of 1787_ (Philadelphia, 1900); and C. G.
Tiedeman, _Unwritten Constitution of the United States_ (New York,
1890). Also A. L. Lowell, _Government and Parties in Continental
Europe_ (2 vols., 1896); W. F. _Dodd, Modern Constitutions_ (2 vols.,
Chicago, 1909), a collection of the fundamental laws of twenty-two of
the most important countries.

"CONSTITUTION OF ATHENS" ([Greek: Athenaion politeia]), a work attributed to the philosopher Aristotle (384-322 B.C.), forming one of a series of _Constitutions_ ([Greek: politeiai]), 158 in number, which treated of the institutions of the various states in the Greek world. It was extant until the 7th century of our era, or to an even later date, but was subsequently lost. A copy of this treatise, written in four different hands upon four rolls of papyrus, and dating from the end of the 1st century A.D., was discovered in Egypt, and acquired by the trustees of the British Museum, for whom it was edited by F. G. Kenyon, assistant in the manuscript department, and published in January 1891. Some very imperfect fragments of another copy had been acquired by the Egyptian Museum at Berlin, and were published in 1880.

_Authorship._--It may be regarded as now established that the treatise discovered in Egypt is identical with the work upon the constitution of Athens that passed in antiquity under the name of Aristotle. The evidence derived from a comparison of the British Museum papyrus with the quotations from the lost work of Aristotle's which are found in scholiasts and grammarians is conclusive. Of fifty-eight quotations from Aristotle's work, fifty-five occur in the papyrus. Of thirty-three quotations from Aristotle, which relate to matters connected with the constitution, or the constitutional history of Athens, although they are not expressly referred to the [Greek: Athenaion politeia], twenty-three are found in the papyrus. Of those not found in the papyrus, the majority appear to have come either from the beginning of the treatise, which is wanting in the papyrus, or from the latter portion of it, which is mutilated. The coincidence, therefore, is as nearly as possible complete. It may also be regarded as established by internal evidence that the treatise was composed during the interval between Aristotle's return to Athens in 335 B.C. and his death in 322. There are two passages which give us the latter year as the _terminus ad quem_, viz. c. 42. 1 and c. 62. 2. In the former passage the democracy which is about to be described is spoken of as the "present constitution" ([Greek: e nun katastasis tes politeias]). The democratic constitution was abolished, and a timocracy established, on the surrender of Athens to Antipater, at the end of the Lamian War, in the autumn of 322. At the same time Samos was lost; it is still reckoned, however, among the Athenian possessions in the latter passage. On the other hand, the foreign possessions of Athens are limited to Lemnos, Imbros, Scyros, Delos and Samos. This could only apply to the period after Chaeronea (338 B.C.). In c. 61. 1, again, mention is made of a special Strategus [Greek: epi tas symmorias]; but it can be proved from inscriptions that down to the year 334 the generals were _collectively_ concerned with the symmories. Finally, in c. 54. 7 an event is dated by the archonship of Cephisophon (329). We thus get the years 329 and 322 as fixing the limits of the period to which the composition of the work must be assigned. It follows that, whether it is by Aristotle or not, its date is later than that of the _Politics_, in which there is no reference to any event subsequent to the death of Philip in 336.

The only question as to authorship that can fairly be raised is the question whether it is by Aristotle or by a pupil; i.e. as to the sense in which it is "Aristotelian." The argument on the two sides may be summarized as follows:--

_Against._--(i.) The occurrence of non-Aristotelian words and phrases and the absence of turns of expression characteristic of the undisputed writings of Aristotle. (ii.) The occurrence of statements contradictory of views found in the _Politics_; e.g. c. 4 (Constitution of Draco) compared with _Pol._ 1274 b 15 ([Greek: Drakontos nomoi men eisi, politeia d' hyparchouse tous nomous etheken]); c. 8. 1 (the archons appointed by lot out of selected candidates) compared with _Pol._ 1274 a 17, and 1281 b 31 (the archons elected by the _demos_); c. 17. 1 (total length of Peisistratus' reign, 19 years) compared with _Pol._ 1315 b 32 (total length, 17 years); c. 21. 6 (Cleisthenes left the clan and phratries unaltered) compared with _Pol._ 1319 b 20 (Cleisthenes increased the number of the phratries); c. 21. 2 and 4 compared with _Pol._ 1275 b 37 (different views as to the class admitted to citizenship by Cleisthenes). It will be observed that the instances quoted relate to the most famous names in the early history of Athens, viz. Draco, Solon, Peisistratus and Cleisthenes. (iii.) Arguments drawn from the style, composition and general character of the work, which are alleged to be unworthy of the author of the undoubtedly genuine writings. There is no sense of proportion (contrast the space devoted to Peisistratus and his sons, or to the Four Hundred and the Thirty, with the inadequate treatment of the period between the Persian and Peloponnesian Wars); there is a lack of historical insight and an uncritical acceptance of erroneous views; and the anecdotic element is unduly prominent. These considerations led several of the earlier critics to deny the Aristotelian authorship, e.g. the editors of the Dutch edition of the text, van Herwerden and van Leeuwen; Ruehl, Cauer and Schvarcz in Germany; H. Richards and others in England.

_For._--(i.) The consensus of antiquity. Every ancient writer who mentions the _Constitution_ attributes it to Aristotle, while no writer is known to have questioned its genuineness. (ii.) The coincidence of the date assigned to its composition on internal grounds with the date of Aristotle's second residence in Athens. (iii.) Parallelisms of thought or expression with passages in the _Politics_; e.g. c. 16. 2 and 3 compared with _Pol._ 1318 b 14 and 1319 a 30; the general view of Solon's legislation compared with _Pol._ 1296 b 1; c. 27. 3 compared with _Pol._ 1274 a 9. To argument (i.) against the authorship, it is replied that the _Constitution_ is an historical work, intended for popular use; differences in style and terminology from those of a philosophical treatise, such as the _Politics_, are to be expected. To argument (ii.) it is replied that, as the _Constitution_ is a later work than the _Politics_, a change of view upon particular points is not surprising. These considerations have led the great majority of writers upon the subject to attribute the work to Aristotle himself. On this side are found Kenyon and Sandys among English scholars, and in Germany, Wilamowitz, Blass, Gilbert, Bauer, Bruno Keil, Busolt, E. Meyer, and many others. On the whole, it can hardly be doubted that the view which is supported by so great a weight of authority is the correct one. The arguments advanced on the other side are not to be lightly set aside, but they can scarcely outweigh the combination of external and internal evidence in favour of the attribution to Aristotle. An attentive study of the parallel passages in the _Politics_ will go a long way towards carrying conviction. It is true that a series such as the _Constitutions_ might well be entrusted to pupils working under the direction of their master. It is also true, however, that the _Constitution of Athens_ must have been incomparably the most important of the series and the one that would be most naturally reserved for the master's hand. There are no traces in the treatise either of variety of authorship or of incompleteness, though there are evidences of interpolation.

_Contents._--The treatise consists of two parts, one historical, and the other descriptive. The first forty-one chapters compose the former part, the remainder of the work the latter. The first part comprised an account of the original constitution of Athens, and of the eleven changes through which it successively passed (see c. 41). The papyrus, however, is imperfect at the beginning (the manuscript from which it was copied appears to have been similarly defective), the text commencing in the middle of a sentence which relates to the trial and banishment of the Alcmeonidae for their part in the affair of Cylon. The missing chapters must have contained a sketch of the original constitution, and of the changes introduced in the time of Ion and Theseus.

The following is an abstract of Part I. in its present form. Chapters
2, 3, description of the constitution before the time of Draco. 4,
Draco's constitution. 5-12, reforms of Solon. 13, party feuds after
the legislation of Solon. 14-19, the rule of Peisistratus and his
sons. 20, 21, the reforms of Cleisthenes. 22, changes introduced
between Cleisthenes and the invasion of Xerxes. 23, 24, the supremacy
of the Areopagus, 479-461 B.C. 25, its overthrow by Ephialtes. 26,
27, changes introduced in the time of Pericles. 28, the rise of the
demagogues. 29-33, the revolution of the Four Hundred. 34-40, the
government of the Thirty. 41, list of the successive changes in the
constitution. It may be noted that the reforms of Solon, the tyranny
of Peisistratus and his sons, and the revolutions of the Four Hundred
and the Thirty, together occupy considerably more than two-thirds of