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 1 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.

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 selfgoverning 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 unchange1 See Essay VII, p. 361.

able 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 origin1.

4. They may arise by the tightening of a looser tie which has theretofore existed between various selfgoverning 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 forego 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

■ 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.

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.

X. THE ENACTMENT AND AMENDMENT OF RIGID

CONSTITUTIONS.

Before proceeding to consider the methods by which these constitutions may be enacted and changed, it is worth while to suggest an explanation of their comparative recent appearance in history. Documentary constitutions, i.e. those contained in one or several instruments prepared for the purpose, are old. There were many of them in the Greek cities; and efforts were sometimes made when they were enacted to secure their permanence by declaring them to be unchangeable. But in the old days when City States (and sometimes also small Rural States) were ruled by Primary Assemblies, consisting of all free citizens, there was no authority higher than the legislature that could be found to enact a constitution, seeing that the legislature consisted of the whole body of the citizens. In those days, accordingly, when it was decided to give peculiar permanence to some political arrangement, so that no subsequent assembly of the people should upset it, two expedients were resorted to. One was to make all the leading men, perhaps the whole people, swear solemnly to maintain it, and thereby to bring in the deities of the States as co-enacting or at least protecting and guaranteeing parties. Tradition attributed this expedient to Lycurgus at Sparta. The other was to provide in the law intended to be Fundamental that no proposal to repeal it should ever

be entertained, or to declare a heavy penalty on the audacious man who should make the proposal. The objection to both these expedients was that they debarred any amendment, however desirable, and however generally desired. Hence they were in practice little regarded, though the exceptionally pious or superstitious Spartans were deemed to be largely deterred from governmental changes by the fear of divine disapproval. Moreover, the second of the above-named devices or barriers could be easily turned by proposing to repeal, not the Fundamental law itself, but the prohibition and the penalty. These having been repealed-and of course the proposal would not be made unless its success were pretty well assured-the Fundamental Law would then itself be forthwith repealed. It must, however, be added that even if the Greek cities had adopted what seems to us the obvious plan of requiring a certain majority of votes (say two-thirds) for a change in the Fundamental Law, or had required it to be passed by four Assemblies in succession at intervals of three months, one may doubt whether such provisions would have restrained a majority in communities which were small, excitable, and seldom legally-minded.

Those who have suggested that the United Kingdom ought to embody certain parts of what we call the British Constitution in a Fundamental Statute (or Statutes) and to declare such a statute unchangeable by Parliament, or by Parliament acting under its ordinary forms, seem to forget that the Act declaring the Fundamental Statute to be Fundamental and unchangeable by Parliament would itself be an Act like any other Act, and could be repealed by another ordinary statute in the ordinary way. All that this contrivance would obtain would be to interpose an additional stage in the process of abolition or amendment, and to call the attention both of the people and the legislature in an emphatic way to the fact that a very solemn decision was being reversed. Some may think that such a security, if imperfect, would

be worth having. The restraint imposed would, however, be a moral not a legal one 1.

A constitution placed out of the power of the legislature may or may not be susceptible of alteration in a legal manner. Sometimes no provision has been made, when it was first established, for any change whatever. There are instances of this among constitutions granted by a monarch to his subjects-such seems to be to-day the case in Spain-but in cases of this kind it might possibly be held that the grantor implicitly reserved the power to vary his grant, as there may not have been expressed in the document, and need not be, any bilateral obligation. As already observed, the Constitution of the present Kingdom of Italy was originally granted to the Kingdom of Sardinia by King Charles Albert in 1848; and it was for a long time held that the power to change it resided in the Crown only. It was extended by a succession of popular votes (1859 to 1871) to the rest of Italy, and some conceive that this sanction makes at least its fundamental parts unchangeable. But the view that it is alterable by legislation has prevailed, and it has in fact been so altered in some points. The Charte Constitutionnelle granted by Louis XVIII, under which the government of France was carried on for many years,

1 Soon after the above lines were written, the point they deal with came up in Parliament in a practical form. In the debate on the Irish Home Rule Bill of 1886 the question emerged whether Parliament could in constituting a legislature for Ireland and assigning to that legislature a certain sphere of action legally debar itself from recalling its grant or from legislating, upon matters falling within that sphere, over the head of the Irish legislature. It was generally agreed by lawyers that Parliament could not so limit its own powers, and that no statute it might pass could be made unchangeable, or indeed could in any way restrict the powers of future Parliaments.

Upon the general question whether Parliament could so enact any new Consti tution for the United Kingdom as to debar itself from subsequently repealing that Constitution, it may be suggested, for the consideration of those who relish technicalities, that Parliament could, if so disposed, divest itself of its present authority by a sort of suicide, i.e. by repealing all the statutes under which it is now summoned, and abolishing the common-law right of the Crown to summon it, and thereupon causing itself to be forthwith dissolved, having of course first provided means for summoning such an assembly, or assemblies, as the new Constitution created. There would then be no legal means of summoning another Parliament of the old kind, and the new Constitution, whatever it was, would therefore not be liable to be altered save in such manner as its own terms provided.