1902 Encyclopedia > Constitution and Constitutional Law

Constitution and Constitutional Law




CONSTITUTION AND CONSTITUTIONAL LAW. The word Constitution 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 re-stricted 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 powera are exercised, and the relations of the different members of the sovereign body to each other where it con-sists 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; judi-cature 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 con-stitutional rule, for example, that the Queen and Parliament are the sovereign, cannot be called a law; for a law presup-poses 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 con-stitutional rules which are not laws. It is an undoubted rule of the constitution that the king shall not refuse his assent to a bill which has passed both Houses, 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. England, Switzerland, the United States, are all constitutional governments in this sense of the word. Russia, France under the last empire, and Spain, on the other hand, would generally be said to be countries without constitutional government. 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 politics, constitutional has come to mean, in England at least, not obedience to con-stitutional rules as above described, but adherence to the existing type of the constitution or to some conspicuous portions thereof,—in other words, Conservative. Thus the abolition of the Irish Church, which was in every way a constitutional measure in the judicial meaning of words, was not a constitutional measure in the party sense. In a country like Spain, on the other hand, the party called constitutional is liberal.

The ideas associated with constitution and constitu-tionalism are thus, it will be seen, mainly of modern and European growth. They are wholly inapplicable to the primitive and simple societies of the present or of 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, 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 was almost from the begin-ning one of empire, 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 this country, 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 the English 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 parlia-ments." 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 thejudicial tribunals. In a constitutional crisis the House of Commons appoints a committee to " search its journals for precedents," just as the Court of Queen'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 acknowledg-ment of the fact, constantly taking up new ground.

In contrast with the mobility of an unwritten constitu-tion 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 by a Convention in 1789, is contained in a code of articles. It was ratified separately by each State, and thenceforward became the positive and exclusive statement of the con-stitution. 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 legisla-ture is permitted by the constitution or not. This is truly a formidable apparatus of provisions against change, and, in fact, only fifteen constitutional amendments have been passed from 1789 to the present day. In the same period the unwritten constitution of England has made a most marked advance, chiefly in the direction of eliminat-ing the separate powers of the Crown, and diminishing those of the House of Lords. The Commons, through its nominees, the Ministry, has absorbed the entire power of the Crown, and it has more and more reduced the other House to a position of secondary importance. The American constitution of 1789 was a faithful copy, so far as it was possible to make one out of the materials in hand, of the contemporary constitu-tion of England. The position and powers of the president were a fair counterpart of the royal prerogative of that day ; the Senate and the 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 little, if at all, 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 last century'—is less modern, in fact —than is the English constitution of the present day.

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 pro-gress 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 constitutions, change has been effected in substance without any corres-ponding 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.

Notwithstanding the strongly marked historical character of our political institutions, the fallacy of regarding them as elaborate contrivances devised to effect the end of good government has always more or less prevailed. It finds expression in what is called the theory of checks and balances—the theory that power is so distributed among the different elements of the state that each acts as a check on the other, and none is supreme. So Blackstone and writers of his class tell us that the English constitution is the per-fection of political wisdom, inasmuch as it combines the virtues of monarchy, aristocracy, and democracy without the faults which would attend any one of these varieties of government unmodified by the others. The tendency to repeat the English type of Parliament, in artificial or paper constitutions, is probably not entirely unconnected with this habit of mind. The question of a second chamber has been a practical difficulty of the first importance in all such constitutions. The attempt to imitate the duality of the English Parliament results in two co-ordinate Houses of le-gislature, each of which may at any moment bring legislation to a stop. " In both the American and the Swiss constitu-tion," says an eminent writer on this subject (Mr Bagehot), " the Upper House has as much authority as the second; it could produce the maximum of impediment, the dead-lock, if it liked; if it does not do so it is owing, not to the goodness of the legal constitution, but to the discreetness of members of the chamber." The explanation may not unreasonably be found in the impossibility of creating a second chamber with the same character which its history has imposed on the English House of Lords. Our two Houses are far from being of co-ordinate authority. In the last result, the will of the House of Commons must prevail.

A further exemplification of this view of the British constitution may be found in the fact that its highest executive council, the Cabinet, is not even known to the law. 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 independent 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 amend-
ment ratified by the separate vote of three-fourths of the States. (E. R.)









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