Nature, necessity, and origin of constitutions. The term “constitution” When applled to the state may connote both a physical and a legal Concepcion the former sense it has reference to the totality of constituent elements which enter into the physical make-up of the state, land, people, institutions, government machinery, etc. In this sense the term is used somewhat as it is in the natural sciences as when we speak of the constitution of an animal or other physical organism.
In the latter sense it has reference to a legal instrument, an “instrument of evidence,” it has been called-a fundamental statute or charter, a document or collection of documents, which embodies the more essential parts of the organic public law of the state. It is, said Jameson, an expression or embodiment in technical language of certain formulas addressed by the state to its citizens or subjects.
Like other terms in political science, it has been variously defined by different writers according to the varying conceptions which they hold as to what a constitution should be. Considering the variety of constitutions which are now in existence and which have existed in the past, it is not easy to formulate a concise definition which would describe equally the character of all of them. There is, however, a fairly general agreement among modern jurists as to the essentials of a constitution, although the actual practice is not always in harmony with the conceptions of the jurists.
Definitions of the Constitution :-
The following definitions by authoritative Writers are offered as examples of efforts to state in general terms the character and function of a constitution.
By the constitution of a state, said Sir James McIntosh,
“I mean the body of those written or unwritten fundamental laws which regulate the most important rights of the higher magistrates and the most essential privileges of the subjects.”
The term Constitution, said George Cornewall Lewis,
“signifies the arrangement and distribution of the sovereign power in the community, or the form of the government.”
Judge Cooley, an eminent American jurist, defined a constitution as the fundamental law of the state, containing the principles upon which government is founded, regulating the division of the sovereign powers, and directing to what persons each of these powers is to be confided and the manner in which it is to be exercised?
Perhaps an equally complete and accurate definition, he continued,
“would be the body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.”
Charles Borgeaud, a high Swiss authority on the subject of constitutions as instruments of government, says:
“A constitution is the fundamental law according to which the government of a state is organized and agreeably to which the relations of individuals or moral persons to the community are determined. It may be a written instrument, a precise text or series of texts enacted at a given time by a sovereign power or it may be the more or less definite result of a series of legislative acts, ordinances judicial decisions, precedents, and customs of diverse origin and of unequal value and importance.”
An eminent German writer on political science, Georg Jellinek, defined
“a constitution as the body of juridical rules which determine the supreme organs of the state, which prescribes their mode of creation their mutual relation, their sphere of action and, finally, the fundamental place of each of them in their relation to the state.”
A constitution in the American sense of the word, said Mr. Justice Miller of the United States Supreme Court, is a written instrument by which the fundamental powers of government are established, limited, and defined, and by which those powers are distributed among several departments for their more safe and useful exercise for the benefit of the body politic.
A distinction is sometimes made between the real and the formal constitution, the one being the actual historical constitution which has evolved under the Operation of political and social forces, the living, working constitution which the people obey, while the other is the constitution in theory, the lawyers constitution the “literary” constitution, as the late President Wilson called it, the actual legal instrument stripped of all its conventions and historical addenta. The real constitution is the formal constitution modified, expanded, and adapted to new conditions by custom and extralegal practices.
The constitution is sometimes referred to as a sort of ideal embodying high principles of a public morality and justice, as when we speak of the spirit of the constitution, meaning some supposed rule or principle to which in our judgment the formal constitution ought to conform.
Necessity of a Constitution :-
Is it possible to conceive of a state fully organized and performing its normal functions, and yet with out a constitution ? The answer depends upon our conception of what constitution is. Jellinek declared that a constitution is a necessity and that every state must and does in fact possess one. It is indispensable, he said, even for states in which an arbitrary regime, in the ancient sense, prevails, or in which a system of despotism exists. A state without a constitution, he added, would not be a state but a regime of anarchy.
This is not saying that a state may not exist and perform for a long period of time the usual functions of a state without having a formal written constitution. In fact the French state, to cite a notable example, existed for a thousand years before it had a constitution in the modern sense, that is, a formal written instrument embodying in definite term the fundamental organic law of the state. Indeed, as will be pointed out later, some writers, among them, French, maintain that France is still without ,a constitution in the modern sense.
Likewise there was a long period during which England may be said to have been, strictly speaking, without a constitution. Thus Lecky spoke of the English constitution at the time of the Restoration of 1660 as being still unformed. But if we interpret the term in the larger sense of being an established body of fundamental rules, principles, maxims, or traditions, even though unembodied in formal documents or charters, according to which the state is organized and its powers exercised, both the French and the English states possessed at least rudimentary constitutions in the seventeenth century.
The French Constitution Prior to the Revolution :-
In France, beginning as early as the fourteenth century, there was developed in the hands of the jurists, particularly those of the natural law school, the distinction between the fundamental laws of the kingdom (les lois fondamentales du royaume) and the laws of the king (les lois du roi). The former embraced certain established maxims, traditions, and principles which had grown up in the course of centuries and which kings themselves admitted could not be abrogated or altered by them without the assent of the states general.
By their prescriptions kings were bound in the exercise of their supreme power of legislation somewhat as modern legislatures are bound by the terms of written constitutions. Les lois fondamentales, said Loyseau, an eminent French jurist of the sixteenth century, sont pour le pouvoir royal des limites serieuses. Among such fundamental principles were the following the king could not levy new taxes without the assent of the states general he could not modify the salic law of succession to the throne he could not alienate the territorial domain of the State and his power of legislation was declared to be limited by the law of nature, by the law of God, and by les lois constitutives fondamentales de i’Etat.
if he violated these laws, his subjects were not bound to obey him no laws had any validity Until they were registered by the parliament (a judicial rather than a legislative body) every citizen had a right to be judged by his peers no man could be imprisoned except by order of a judge and the nation had a right to be convoked in national assembly to deliberate upon the needs of the state.
Thus it came to pass that France had a collection of laws, supposedly imposed by God or by nature or developed by custom and recognized by her kings, which the jurists distinguished from les lois ordinaires and which they variously described as les lois fondamentales, constitutivw, constitutionnelles,primordiales, immuables, permanentes, inebmnlables, indestructibles, etc. These in their totality formed a rudimentary, unwritten constitution. Historians and jurists expounded and commented upon them.
They were not always observed by kings, however, and in the seventeenth century they fell almost into desuetude as the monarchy became more and more absolute? When the states general finally met in 1789, practically all the whims that were laid before it placed at the head of their lists of grievances the lack of a constitution. Sieyes, the deputy who led the light for the adaption of a written constitution, proclaimed the modern doctrine when he asserted that the constitution must emanate from the nation that it could be framed only by an assembly having a special mandate from the people and that the legislative power is limited by the constituent power.
In a somewhat analogous manner the early English constitution was developed. The parallelism, however, ended with the outbreak of the French Revolution, When the French reduced their constitution to written form, whereas the English continued to rely upon custom, legislation, and judicial interpretation as the processes for the development of theirs.
Origin of Written Constitution :-
While examples of written constitutions in the modern sense hardly antedate the eighteenth century, constitutions were not unknown to the ancients. Thus Athens is said to have had eleven “constitutions” between 624 RC. and 404 B.C. Aristotle is credited With having collected and described a large number of “constitutions,” and in his treatise on “Politics” he discussed “constitutional government,” inquired into the “best constitution,” and himself defined a “constitution” as follows: A constitution is the organization of offices in a state, and determines what is to be the governing body and What is the end of the community.
The Romans likewise distinguished between constitutional law and ordinary law, between the constituent power and the legislative power and they employed the technical phrase “rem publicam constituere” when referring to the exercise of the constituent power.
But however clear may have been the idea of a constitution in the minds of the ancients, they never went to the length of embodying their constitutional principles in a fundamental statute or charter having an authority superior to that of other laws. During the Middle Ages the rights of cities, corporations, the church, and the feudal lords were sometimes defined and setiforth in written ,charters which had Something of the character of contracts. From this it was but a short step to concessions from the king to his subjects, generally consisting of the recognition of certain rights which were defined in written instruments and which when once made tended to be regarded as contracts between him and the people. In a sense these charters may be regarded as the precursors of the first written constitutions.
Prototypes of Modern Written Constitutions :-
In the sixteenth century the notion of fundamental law lex fundamentalis appeared in the writings, especially, of the monarchomachs, i.e., the concept of a body of law superior in authority and dignity to ordinary law. As we have seen, this notion took deep root in France and it gained a foothold in England and other countries. Thus James I of England in one of his addresses spoke of the “fundamental laws” as being divine and of himself as being their defender. During the reign of his son, Charles I, the idea played an important role in the parliamentary struggles, and the Count of Strafford was condemned for endeavoring to subvert these ancient and fundamental laws. The term “constitution” was occasionally employed also to designate important English statutes.
Thus the famous statutes of Henry II concerning the relations between the king and clergy were styled the “Constitutions of Clarendon.” The term was also used in the second and third charters granted early in the seventeenth century to the Virginia company in William Penn’s Frame of Government for Pennsylvania in 1682 , in Sidney’s work on government’s written during the reign of Charles II , in the political works of James Harrington; and in various other places. Among the more immediate precursors of the modern written. Constitution may be mentioned the charters granted to the English colonies in America the celebrated Agreement of the People, drawn up by Cromwell’s soldiers in 1647
The Instrument of Government of the Protectorate, promulgated by Cromwell in 1653, the Fundamental Order of the Colony of Connecticut. (1639) and the various Declarations and Resolves drawn up by the American colonies prior to the Revolution. In the latter part of the seventeenth century the term gradually came to signify the more fundamental laws and especially those which related to the organization of the government.
The modern use of the term was finally established when it was applied to the new instruments of government adopted by the American colonies after their separation from Great Britain in the latter part of the eighteenth century. Since then the term has had a definite and well understood meaning, namely, the body of fundamental law, either written or customary, which determines the organization of the state.
The First Written Constitutions :-
The era in Which the first American constitutions were framed and adopted (1776-1789) was, said Seeley, a period which is preeminently the constitutional period of the modern world of these first American constitutions, Lord Bryce said, they are among the greatest contributions ever made to politics as a practical art and they are also the most complete and definite concrete expressions ever given to the fundamental principles of democracy. The American example was speedily followed by France, whose first written constitution was promulgated in September, 1791. The German states soon followed, and between 1814 and 1829 many of them adapted written constitutions, 24 though Prussia and some others did not imitate their example until the middle of the century.
Other European states likewise adapted written constitutions, most of them before the middle of the nineteenth century Spain in 1812, Norway in 1814 (still in force), Denmark and the Netherlands in 1815, Portugal in 1822, Belgium in 1831, Italy and Switzerland in 1848, Austria 1n 1861, and Sweden in 1866. Before the end of the century every European state except Great Britain, Hungary, and Wurttemberg had a written constitution of some sort.