establish a German Empire out of a number of practically independent States, this had to be done by the creation of a federal system under a Rigid Constitution. No similar device was required in the case of Italy, because the communities which united themselves to the kingdom of Sardinia between 1859 and 1871 had not theretofore enjoyed constitutional government, had just dismissed their whilome sovereigns, were all eager for union, and in their eagerness for union cared but little for the maintenance of any local rights.

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laws of the State, and can be changed only by a method different from that whereby those other laws are enacted or repealed.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 1. 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

1 See Essay VII, p. 378.

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 Rigid1, 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.

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,

1 See as to this Constitution Essay VIII, p. 391. 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.

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 1. 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 2.

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 preexisting system of government in definite and positive terms precluding further controversy regarding it.

1 Observations on this topic may be found in the author's American Commonwealth, chap. xxxvii.

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.

(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