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

CONSTITUTIONS.

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 con

stitutions 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 by illustrative instances. At Rome in the second century B. C. there was but one kind of enactment. All leges passed by the general assembly (whether comitia centuriata or comitia tributa) were of the same generality and the same force. There was but one legislative authority, the people voting in the comitia. So in England, during the last few centuries, there has been but one direct legislative authority, viz. Parliament, which is supreme, and all whose acts bind every citizen everywhere. Accordingly in England the laws called constitutional differ only in respect of their subjectmatter from other laws, but are of no higher order. Each of such laws, though we call them in their totality 'the British Constitution,' is alterable by the ordinary legislative authority at any moment, just like other laws. Between an Act for making a railway from Manchester to Liverpool and an Act extending the electoral suffrage to all householders or disestablishing the Protestant Episcopal Church in Ireland there is no difference whatever in point of form or in degree of authority. In Switzerland, however, and in France the case is different. The Constitution of the Swiss Confederation is a document which was enacted by the people, and any amendment of which needs to be similarly enacted by them, whereas ordinary laws are passed by the Federal legislature of two Houses 1. The present Constitution of the French Republic was enacted by the two Chambers sitting together as a Constituent Assembly, and can be amended only by the Chambers sitting together in that capacity, after each Chamber has separately resolved that revision is needed, whereas ordinary laws are passed by

1 It is unnecessary for the present purpose to call attention to the complication introduced in Switzerland by the application of the Referendum plan to ordinary laws.

the two Chambers sitting separately. Thus both in Switzerland and in France there is a distinction in the enacting authority, and therewith also a distinction in the quality and force of the laws enacted, the law which is called the Constitution being entirely superior to the other laws which are passed by the legislature in the ordinary every-day course of its action.

What in the case of each State of the latter or newer type may be the higher (and indeed supreme) authority which is alone competent to enact a Constitution depends upon the provisions of each particular system. It may be the whole people, voting by what is sometimes, though not very happily, called a plebiscite. It may be a body specially elected for the purpose, which dissolves when its work has been completed. It may be certain local bodies, each voting separately on the same instrument submitted to them. It may be, as in the case just mentioned of France, the ordinary legislature sitting in a peculiar way, or acting by a prescribed majority, or rendering several successive votes to the same effect at prescribed intervals of time. These are matters of detail. The essential point is that in States possessing Constitutions of the newer type that paramount or fundamental law which is called the Constitution takes rank above the ordinary laws, and cannot be changed by the ordinary legislative authority.

I have sought in many quarters for names, necessarily metaphorical names, suitable to describe these two types of Constitution. They might be called Moving and Stationary, because those of the older kind are virtually never at rest, but are always undergoing some sort of change, however slight, in the course of ordinary legislation, while those of the newer type abide fixed and stable in their place. Or they might be described, the former as Fluid, and the latter as Solid or Crystallized. When a man desires to change the composition of a liquid, he pours in some other liquid or dissolves a solid

17. e. to change mechanically, not necessarily chemically.