plies the term ‘flexible,’ while constitutions of the second and third classes, which are superior to the ordinary law-making power and not capable of amendment except by the higher authority which created them, he describes as ‘rigid’ constitutions.
It is obvious that the authority of a self-imposed constitution differs widely from that of a true fundamental law, which underlies the ordinary processes of government and by which a political society has chosen to limit or has been constrained to restrict its governmental agencies. In a legal sense, therefore, the real distinction between constitutions does not turn upon the ease or difficulty with which they can be altered, nor yet upon the fact that the established process for amending a constitutional provision differs from the ordinary processes of legislation, but in the fact that a constitution of the one type is a part of the ordinary law of the land, and that a constitution of the other type is superior to the ordinary law; that in the one case legislation is irresponsible and uncontrollable, while in the other it is controlled by the fundamental law. In a State having a constitution of the one sort we shall expect to find a court or other independent representative of the sovereign power from which the Constitution was derived, which shall protect it from encroachments on the part of the ordinary law-making power; in a State of the other sort, we shall look to see the governing authority of the State unfettered by any external authority—itself the supreme representative of the sovereignty of the State.
Ordinary Constitutions.—The Constitution of Great Britain affords the best modern example of the nature and operation of an ordinary constitution; that of the United States, the best example of an extraordinary, or supreme, constitution. The British Constitution is an indefinite body of legal rules and principles, partly customary, partly the result of judicial decisions, and partly made up of acts of Parliament. These are nowhere collected in one place, but must be extracted from the whole body of the common and statute law of the realm and from observation of the workings of the Government. Any act of Parliament and any judicial decision may modify it, and not infrequently statutes have been passed which have contained both constitutional and ordinary legislation mingled together in one and the same paragraph. Not only is there no authoritative statement of the British Constitution to be found, but, from its very nature, no such statement could be made. So much of it depends upon custom and so much is left to time and circumstance, that the most precise definition of its terms would be the most misleading. No law, statutory or judicial, has created the Cabinet, to which, as the executive committee of the House of Commons, the government of the Empire is at present committed; but whether it is really the Cabinet, or a committee of the Cabinet, or the Prime Minister, that governs England, is so much a question of personality and of circumstances that it defies answer. So no one can say whether the Crown still retains the ancient prerogative of vetoing an act of Parliament. It is commonly assumed that the power is extinct. The only safe statement that could be made, however, would be that the right has not been exercised for nearly two hundred years, and that only a grave emergency would justify the sovereign in employing it; and if this should occur, there is no lawful process by which the act, however repugnant to current ideas of government in England, could be declared unconstitutional or deprived of its legal effect. Under such a system the Constitution would sanction any governmental act which could be performed without precipitating a revolution.
The latest English writers distinguish between the law and the custom of the Constitution, the former having reference to certain statutory provisions—such as the act settling the succession to the crown, the bill of rights, etc.—which, being laws in the strictest sense of the term and tending to limit the authority of a single branch of the Government and not the supremacy of Parliament, are capable of enforcement by the courts; and the latter, to the great body of customary rules and observances which in practice control the working of the Government and the distribution of its powers, but are enforced only by public opinion and by respect for the settled order of the Constitution. The latter are not true laws, as they lack the sanction of any but legal authority to declare and enforce them. In the field of ordinary jurisprudence no such distinction as this can be drawn between custom and law. There custom is law, and will be enforced as such. But the case is manifestly different in the sphere of constitutional law, for there a custom tending to restrict the action of the sovereign power can find no jurisdiction to enforce it.
A constitution of the ordinary legal type may belong to either of the two old categories of ‘written’ and ‘unwritten’ constitutions—an unwritten constitution being one which is wholly or largely based on custom or judicial decisions, and a written constitution being the result of a specific act of legislation and having the definite form and the certainty of a body of statute law. But the distinction, though sound enough, is of no practical importance, as no considerations of political philosophy or of legal validity are involved in it. In fact, every political constitution is a composite of common and statute law, of custom and of legislation, and the validity of its several provisions is not in the least dependent upon the manner in which the principles which they embody have acquired the form and content of legal authority. The British Constitution, for example, is much more than a body of customary law. At least five important sources of the rules and principles which it embodies may be distinguished. These are: (1) Two principal treaties, the Act of Union with Scotland in 1707 and the Act of Union with Ireland in 1800. (2) Certain great ‘compacts,’ viz. Magna Charta, in 1215, the Declaration of Right, in 1689, and the Act of Settlement, in 1701. (3) A large number of public acts of Parliament, ranging from matters of the greatest to those of the least political importance. (4) The body of precedents and customs known as the common law. (5) The usages and practices known specifically as the customs of the Constitution, which are in reality the mass of practical expedients and understandings by which government is mainly carried on. To these last we have denied the character of law, partly because of their indefiniteness and fluctuation, but more particularly because of their lack of a legal sanction. The fourth class consists of legal rules in the proper sense of the term, but of the sort contemplated by the use of the word unwritten;
