the establishment of free constitutions, they found in that of England the model fittest to be followed, and sought to adapt its principles to their own several conditions.

England, moreover, has been the parent of free governments in a further sense. Though she has not, like Rome, stretched her system of government till it embraced the world, she has reproduced it in those parts of her transoceanic dominions where her children have been able to form self-governing communities. Reduced copies of the British Constitution have been created in seventeen self-governing colonies. Seven of these have in North America been united in a Federation whose frame of government is built on British lines. Six others, in Australia, have been similarly grouped in another Federal Government of a not less distinctively British type. And an independent Republic, far vaster in population than all these colonies put together, has, less closely, but yet in the main and essential points, reproduced the principles, although not the form, of the institutions of the motherland. It is, therefore, to Rome and to England that the eye of the student of political constitutions will most often turn. They represent the most remarkable developments of ordered political life for the ancient and for the modern world respectively. And whoever attempts to classify Constitutions and to note the distinctive features of the principal types they present, will find that it is from Rome and from England that illustrations can most frequently and most profitably be drawn1.

'As to the countries or peoples in which Constitutions in the proper sense can be said to exist, see Note at the end of this Essay.

II. THE TRADITIONAL CLASSIFICATION OF CONSTITUTIONS.

The old-fashioned classification of Constitutions which has come down to our own times is based on the distinction of Written and Unwritten Law, itself an illexpressed and rather confusing distinction, because ius non scriptum is intended to denote customs: and when customs have been recorded in writing, they can hardly continue to be called unwritten. This classification places in the category of Written Constitutions those which are expressly set forth in a specially important document or documents, and in the category of Unwritten those which began, not in formal agreements, but in usage, a usage which lives in men's recollections, and which, even when it has been to a large extent defined, and secured against error, by being committed to writing, is recorded as embodying that which men have observed, and are deemed likely to continue to observe, not as that to which they have bound themselves formally by a law.

These terms are, however, not happy terms, although the distinction they aim at expressing is a real distinction. The line which they attempt to draw between the two classes of Constitutions is not a clear or sharp line, because in all Written Constitutions there is and must be, as we shall presently see, an element of unwritten usage, while in the so-called Unwritten ones the tendency to treat the written record of custom or precedent as practically binding is strong, and makes that record almost equivalent to a formally enacted law, not to add that Unwritten Constitutions, though they began in custom, always include some statutes. Moreover, these names, while they dwell on a superficial distinction,

ignore a more essential one to be presently mentioned. Let us therefore try to find a better classification.

If we survey Constitutions generally, in the past as well as in the present, we find them conforming to one or other of two leading types. Some are natural growths, unsymmetrical both in their form and in their contents. They consist of a variety of specific enactments or agreements of different dates, possibly proceeding from different sources, intermixed with customary rules which rest only on tradition or precedent, but are deemed of practically equal authority. Other Constitutions are works of conscious art, that is to say, they are the result of a deliberate effort on the part of the State to lay down once for all a body of coherent provisions under which its government shall be established and conducted. Such Constitutions are usually comprised in one instrument-possibly, however, in more than one-an instrument solemnly enacted whose form and title distinguish it from ordinary laws. We may provisionally call these two types the Old and the New, because all ancient and mediaeval as well as some few recent Constitutions are of the former kind, while most modern ones belong to the latter. The distinction corresponds roughly to that drawn, in England and America, between common law and statute law, or to the Roman distinction between ius and lex, so that we might describe the types as Common Law Constitutions and Statutory Constitutions respectively. Yet the line of demarcation is not always a plain one. In countries with constitutions of the Common Law type, statutes are frequently passed, declaring or modifying or abolishing antecedent usage, which supersede and

replace parts, possibly large parts, of the common law maxims, so that at last most of the leading rules can be found in a few great statutes. On the other hand, the Statutory Constitutions become developed by interpretation and fringed with decisions and enlarged or warped by custom, so that after a time the letter of their text no longer conveys their full effect. It is, therefore, desirable to have some more definite and characteristic test or criterion whereby to mark off the two types which have been just described in general terms.

III. A PROPOSED NEW CLASSIFICATION OF CONSTI

TUTIONS.

Such a criterion may be found in the relation which each Constitution bears to the ordinary laws of the State, and to the ordinary authority which enacts those laws. Some constitutions, including all that belong to the older or Common Law type, are on the level of the other laws of the country, whether those laws exist in the form of statutes only, or also in the form of recorded decisions defining and confirming a custom. Such constitutions proceed from the same authorities which make the ordinary laws; and they are promulgated or repealed in the same way as ordinary laws. In such cases the term 'Constitution' denotes nothing more than such and so many of the statutes and customs of the country as determine the form and arrangements of its political system. And (as will presently appear) it is often difficult to say of any particular law whether it is or is not a part of the political Constitution.

Other constitutions, most of them belonging to the

newer or Statutory class, stand above the other laws of the country which they regulate. The instrument (or instruments) in which such a constitution is embodied proceeds from a source different from that whence spring the other laws, is repealable in a different way, exerts a superior force. It is enacted, not by the ordinary legislative authority, but by some higher or specially empowered person or body. If it is susceptible of change, it can be changed only by that authority or by that special person or body. When any of its provisions conflict with a provision of the ordinary law, it prevails, and the ordinary law must give way. These are features, partly political, partly legal, which mark off the two types of Constitution from one another; and although it will appear that in some few cases the question to which type the Constitution of a particular State belongs may be a nice one, still the general legal criteria to be applied are clear and definite. In a State possessing a constitution of the former-the older-type, all laws (excluding of course by-laws, municipal regulations, and so forth) are of the same rank and exert the same force. There is, moreover, only one legislative authority competent to pass laws in all cases and for all purposes. But in a State whose Constitution belongs to the latter-the newer-type, there are two kinds of laws, one kind higher than the other, and more universally potent; and there are likewise two legislative authorities, one superior and capable of legislating for all purposes whatsoever, the other inferior and capable of legislating only so far as the superior authority has given it the right and function to do so.

The difference of these two types is best explained