Chapter 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laws of the State, and can be changed only by a method different from that whereby those other laws are enacted or repealed.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.

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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.

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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].

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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.

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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.

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Footnote 77:

See Essay VII, p. 432.

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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].

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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.

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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.