Adoption and Amendment of Constitutions in Europe and America

Front matter

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Introduction

The work here presented to English readers first came before the public in 1893 as the successful competitor for the Prix Rossi^ awarded the previous year by the Faculty of Law of the University of Paris.^ The themes for this competition are published long enough in advance to call forth the efforts of a high order of talent among the younger scholars of France, and being open to all comers, the prize is not awarded unless the essays form a substantial contribution to legal and political science. When, however, the subject for 1892 was announced, it was not necessary for our author to begin investigations in an untried field to see what he might learn about the matter in the space of a year; for, having been for a considerable period engaged in the study of Democracy, he was prepared to turn much accumulated knowledge and experience into this particular channel. To the friends who knew of the essay previous to its submission the award was not a surprise.

Yet the course of competition was not without its dangers, for the essayist expressed very strong opinions in opposition to doctrines taught by the very professors who were to sit in judgment on his paper. In the chapters on France and in other portions of the work where the relations of constitutional to statute law are discussed he points out plainly what seem to be false positions of the

^ Under the title, J^tablissement et BMsion des Constitutions en AmSrique et en Europe, Paris, Thorin et Fils.

V

VI INTRODUCTION.

French jurists, both as to the character of their fundamental law and as to the relation of the French people to the making and unmaking of their constitution. Yet the essay was given the most cordial praise by those who awarded the crown.^

Dr. Borgeaud's published studies in political science begin with his Jena thesis of 1883, on the religious philosophy of Rousseau. In 1887 he was made Doctor in Law at Geneva on presentation of a work on the History of the Plebiscite in Antiquity .^ This is a careful study of the conditions of ancient democracy, setting forth clearly in the atmosphere of their age the origin and development of popular rights. Owing to the peculiar conditions of life and to the prevailing conceptions of religion and law, the democracy of antiquity stands apart from that of modern times. With all the struggles for liberty, it was the freedom of the comparatively few, not of the many, that was wanted. Yet we have at least one result which connects the past with the history of modem democracy, — law comes down from the clouds and rests upon terra firma. In the course of that period called " ancient" by us who are a little further removed from the beginning, law, in the conception of men, ceased to be the voice of a hidden God and became the voice of the people. By this process men became gradually conscious that they had a part in the framing of those rules by which the conduct of society was regulated, though the full weight of their responsibility was left to a later age to discover. Dr. Borgeaud's work makes clearer the distinctions between ancient and modem political notions, and, in marking the limitations of popular rights, shows, at least, what one may not expect to find of precept or example in the past.

1 Distribution des Prix, Concours de 1892, pp. 18-21.

2 Histoire du Plebiscite dans VAntiquiti. Paris, E. Thorin, 1887.

INTRODUCTION. VU

Since the appearance of the Plebiscite the author has devoted himself to the study of modem |)olitical institutions. From time to time articles have appeared under his name in the Annalea de VEeole Libre des Sciences PoUtiqueSy on the origins of later democratic phenomena. Naturally turning his inquiries toward America, he was not content to take surface appearances of the present, but prepared himself for an understanding of the colonies and states of the Union by long and careful investigations into the conditions of Puritan England. Fruits of this study appeared in the Annales^ and a group of those papers have been translated into English under the title " The Rise of Modern Democracy in Old and New England." ^ The results of the same researches will be seen in condensed form in the opening chapters of the present work. In opposition to recent theories the author sees little continuous Germanic survival in the government and institutions of the colonists, since despotism had largely crushed these out in public life. He returns with accumulated evidence to the older explanation that self-government in church matters gave birth to political democracy in New England.

I have said that the author was largely prepared in advance for such a work as this, but the statement should not detract from our estimate of the labour necessary to its completion. The treatment is not a mere textual codifies^ tion of the most recent articles of amendment in the constitutions of the civilized world, but is an exhibit of the historical development of each, and demanded not only the examination of nearly two hundred constitutions, but a knowledge of the politics and history connected with each. If we call to mind that the United States have

1 Translated by Mrs. Birkbeck Hill, with an appreciative preface by C. H. Firth. London, 18M.

VUl INTRODUCTION.

forty-five constitutions and the Swiss Confederation has twenty-five in o'peration, we can form some conception of the difficulty of drawing general conclusions respecting amendment. Yet as a native of Switzerland one may expect that Dr. Borgeaud will be able to understand free institutions. A citizen of the miniature republic of Geneva, he has not only lived in the atmosphere of political theory breathed by illustrious predecessors like Rousseau, but like all his compatriots has participated in the practical rights and duties of citizenship ; equally proud of his profession of letters and his captaincy in the Swiss army. At the request of his alma mater he is now engaged on a history of the University of Geneva.

In view of the lively interest now taken in popular rights and the increasing agitation for closer participation of the voter in the legislation of his state or municipality, it is not necessary to search for an excuse for presenting to a wider circle of readers a work which deals with the fundamental theories underljring the problems of the hour. If we wish to obtain a comparative view of the democracies of the present day, it is necessary to inquire into the primary ideas which rule their respective governments. In our search for these, no one thing reveals more clearly the prevailing conceptions of law and government in a state than the relation of the people to the building and re-building of their constitutions. The author had no intention of writing a constitutional history, still less a complete exposition of the governments of the various countries mentioned ; yet by his vigorous outlines he has succeeded in giving the reader remarkably clear conceptions of the origin, growth, and present status of government in them all.

Certain positions taken by the author on constitutional questions deserve particular attention. Of great impor-

INTEODUCTION. IX

tance is his statement of the relation of statute law to constitutional law, a subject which seems to be much confused in the minds of legislators in many states. The source of this confusion in European countries the author traces to Prussia, where one early constitution was adopted under 43uch political pressure that, ever since that time, the jurists have been bringing their theories of sovereignty and constitutional law around to fit the existing condition of things in a monarchical government. Switzerland suffers from the «ame trouble because so many of its jurists are educated in Germany, and in many of its little states so much tradition survives from the time when no written constitution existed.

Dr. Borgeaud might have pointed to the state constitutions of the American Union as eminent examples of the mixture of statute and fundamental law. The reasons for this will not be found in European influence, but in the gradual resumption by the people of powers formerly delegated to the legislative or executive branches of the governments. The people have become afraid of their legislatures. The full representative functions, which in earlier times were granted to the delegate, have been little by little withdrawn. Legislatures no longer elect the executive and judicial officers, but are even restricted in legislative duties, for many states fix in the constitution the earliest possible date for adjournment.

To counteract the mistakes of the law-makers, the governor has been given the power to arrest temporarily the progress of legislation by means of the veto, and the people ^obtain indirectly an opportunity to express their opinion. But, more illogically, the makers of constitutions have not been content to establish a framework of general principles about which a state shall be built; but they must anticipate the organizing legislature by inserting private

X INTRODUCTION.

law or acts of ordinary criminal jurisprudence. The ne\r constitution o£ New York, for instance, regulates the indi* yidual responsibility of stockholders in joint companies, — a duty more properly laid upon a statute of bankruptcy. The form of gambling called " pool-selling " is prohibited by name. The excellence of the measure and the reasons for putting the matter out of reach of the legislature are all equally obvious ; but this is not constitutional law. In the endeavour to fix things once for all according to the prevailing mood of the electors, provisions even more illogfical than those quoted are placed in constitutions,^ rendering the fundamental law inelastic, and limiting the natural growth of society. If amendment is made easy, the popular sense of the stability of the state and respect for its charter of liberties are weakened.

Much confusion also arises in the attempt to regulate local and municipal government too rigidly by state constitutions. Not only is the distinction lost between fundamental and statute law, but also between general and administrative legislation. The acts of town councils and boards of aldermen are not legislative but administrative ; yet constitution makers keep on ignoring this fact, and provide governments for cities, in which appear the "checks and balances " of a national union, double legislatures, executive vetoes, divided responsibility, and all the machinery for real legislation. The general legislature is often given a control of municipal government in a way not only detrimental to true democracy, but also false to the relation of legislature to administration. State oversight to maintain uniform observance of general municipal laws is a different matter from state legislation for localities; but this has not been widely apprehejided by law-makers. This con-

^ For drastic examples, see the constitutions of North and South Dakota.

INTRODUCTION. XI

fusion seems to be due to primary misapprehension of the relation of the constitution to the life of the state.

The subject of Direct Legislation is treated in this work entirely in its relation to constitutional amendment. This fact should be borne in mind when considering the strictures drawn by the author on the recent developments of the Initiative in Switzerland. Space could not be given to a discussion of the Referendum and Initiative as applied to ordinary statute law, but he has put us under obligation for a close examination of the constitutional aspects. For this is now to be a burning question in the more democratic countries of Europe and America.

The people are seeking for some means to control their legislatures. They elect, but fear and distrust, their law-makers. It looks as if one of the remedies would be to infuse into the ancient right of petition, the right to compel the attention of representatives. Possibly the people may demand that the very words of that petition be made law. If so, it behooves the leaders of public opinion to point out that acts aimed at amendments of the statute laws of the land are trifling matters compared to changes in the fundamental constitution.

The experiments now going on in Switzerland are attracting universal attention. The participation of the people in the proposal and ratification of statute law has, in some form or another, penetrated every canton of the Confederation. In the old democracies this has been going on since the Middle Ages and excites no wonder. In the more populous states the Initiative and Referendum are modern institutions, not unanimously accepted by the people, and regarded with mixed emotions by distant observers. But in passing judgment on the matter, one fact is liable to be left out of account, namely, the really small amount of law which comes before the people for xii INTRODUCTION.

review. When one takes an itemized account of the laboui*s, say o£ an American state legislature, it will be seen that the greater part of its work is of a jt^9t-private character, or belongs to the domain of control, while only a small number of its acts are, in reality, general legislation. It is only this latter class of laws that would be subject to the Referendum or the Initiative. Hence, whatever may be the merits of these institutions, the fear of cumbering the public mind with intricate legislation is reduced to very low terms.

In endeavouring to show that Direct Legislation is no new thing in America, certain recent writers have created some confusion by citing town meetings and constitutional ratifications all together as examples of the idea. It need hardly be said that both these phenomena have a history. The constitutional referendum is developed in this book ; popular law-making will stand better if treated by itself, for it is possibly an institution of the future.

Dr. Borgeaud's work is here reproduced just as offered in competition for the Rossi Prize, except that the part devoted to Switzerland was considerably enlarged before its first publication. The co-operation of the author has been freely given in bringing up to date the changes which have taken place since 1892. A few notes, added on my own responsibility, have been duly signed.

J. M. VINCENT.

Johns Hopkins University, March, 1895.

AUTHORIZED TRANSLATION

Author's Preface

J A CONSTITUTION is the fundamental law according to which the government of a state is organized and the relations of individuals with society as a whole are regulated. It may be either a code, a well-defined text, or a collection of such texts promulgated at a certain time by a sovereign authority, or it may be the result, more or less definite, of a series of legislative acts, ordinances, judicial decisions, precedents, and traditions of dissimilar origin and unequal value.

To the first class belong most of the constitutions of to-day. To the second belongs the oldest of them all, the one from which all the others are in a certain sense descended ; namely, the English constitution. As the private law of the United Kingdom is uncodified, so also is her fundamental law unwritten. The vote of a parliamentary majority, the decision of a supreme court, may serve to expand or to contract it, and it is constantly in process of formation; it is a barrier, yielding indeed to the pressure of circumstances, when this pressure attains a certain degree of intensity, but never breaking; it is stable in spite of, or rather because of, its flexibility. We can study the growth of the English constitution, but we cannot properly speak of its adoption nor of its

XVI PREFACE.

revision. The decrees of Parliament, that complex power wielded conjointly by the King, the Lords, and Commons, are sovereign, but Parliament doesjnot create the constitution. It may enact statutes which become a part of the fundamental law, but does not itself either establish or systematically revise the constitution.

This regime, the result of the political evolution of a feudal monarchy, the continuity of whose public law has never been permanently interrupted, commands admirers among liberals as well as among conservatives. Both — and the conservatives perhaps first, — will recognize it& dangers, the further England advances in the direction of democracy. An unwritten constitution does not, as a whole, furnish innovators a definite, concrete point of attack. But, as it lies within the ordinary competence of Parliament to increase or diminish it by mere statutes, indirect blows may be dealt it, all the more dangerous because their aim is not immediately and generallyapparent. V y

The present study is devoted to the process of constitution-making in those states which admit of an isolated treatment, and render possible the attainment of a general theory. It is restricted to those countries, which are, moreover, becoming more and more numerous, whose public law may be considered apart from the power which creates it, and whose political institutions are based upon a fundamental statute, emanating from this power. Theauthor has endeavoured to treat the subject objectively^ in a rigorously scientific and impartial manner. He has;

PRJEFACE. XVU

tried to avoid approaching the different systems which form the object of his investigations with any intention of exploiting them for the support of the system in operation in this or that particular state.

The method employed will be found to be largely the historical. A new school, now counting among its representatives the greatest names of German science, has ' undertaken to solve the problems of public law, while almost completely ignoring historical considerations, and has inaugurated what is called the legal method (mSihode juHdiqae). This is not the place to discuss the conclusions reached by this school in regard to this or that particular constitution. These are in many ways remarkable, perhaps because of the character of the men using this method rather than because of the value of the process itself, but it must be admitted that in the domain of comparative legislation such a method may be followed by most unfortunate consequences. Nothing is more misleading than the comparison of the institutions of different societies, if made from a purely legal standpoint. This procedure may have its advantages in the study of administrative law, but it has only disadvantages in the study of constitutional law, for the political character of the latter is the predominant factor, to appreciate the importance of which, we must above all appeal to history.

Modern constitutions are not, like the best of our present codes of private law, the systematic work of jurists. They have sometimes been the result of theoretical speculations,, though much less than is generally believed ; at any xvm PREFACE.

rate, they have never been solely the product of theory. Even during the century of philosophers, they were, in more respects than one, the work of time and circumstance. To-day they are little else. They are the great pages in the life of the nations, which it is impossible to interpret rightly apart from the book in which they have been inscribed. If we attempt to institute comparisons, to contrast the fundamental laws of one country with those of another, without having thoroughly investigated their origin, we run the risk of making the strangest blunders.

To judge a constitutional system correctly, a clear understanding of its general underlying principles is essential. We can attain this only by studying the origin of the fundamental law upon which that system is based, or by tracing the evolution of the customary law to which it conforms. Research alone, although at times difficult, can furnish the reader with conclusions based upon real facts and not upon more or less arbitrary theories.

The aim of this book is to show the possibilities of such an investigation. The largest place is given to the legislation of those countries whose public law is based upon the principle of popular sovereignty, because the states of this character are the home of written constitutions, and because with them originated the idea of regulating their adoption and revision.

Pabis, Maich, 1802.

Contents

Introduction v

I. The Origin, Growth, And Character Of Written Constitutions

OHAPTBR PA6B

I. The " Agreement of the People " 3

n. The First American Constitutions of the Seventeenth Century 10

III. The Constitutions of the United States 15

IV. The American Idea in France 21

V. The French System in Europe 25

VI. Written Constitutions 36

n.

ROYAL CHARTERS AND CONSTITUTIONAL COMPACTS. Book I. Thi; German Group.

_ I. Constitutional Compacts 47

n. The Charter of Saxe- Weimar and the Constitution of Wtir-

temberg 51

ni. Amendment Clauses in the Constitutions of Luxemburg,

Bavaria, Saxony, Electoral Hesse, etc 56

- IV. The Constitutions of Prussia and the German Empire . . 61 ' V. The Logical Outcome of the Prussian System ... 66 VI. The Revised Constitutions of Saxe- Weimar and Oldenburg. The Constitutions of the Free Cities, Ltibeck, Hamburg,

and Bremen 71

xix

XX CONTENTS.

CHAFISB PAO>

YII. The Constitation framed in 1848 by the '' Frankfort Parliament" 76

ym. The Constitutions of Austria 79

Book IL «Thb LATiN-ScAicDiHAyiAH Gboup.

I. Italy 84

n. Spain 87

m. Portugal 91

rv. Sweden, Finland 94

V. Norway 99

VL Denmark and Iceland 104

VIL The Netherlands, Luxemburg 106

YIIL Belgium, Boumania 109

IX. Greece . . 116

X. Servia, Bulgaria 118

Recapitulation 126

m.

DEMOCRATIC CONSTITUTIONS.

Book I. United States of Amebica

I. The Federal Constitution 131

II. The State Constitutions during the Revolution . . . 137

III. The Hartford (1818), Boston (1820), and Albany (1821)

Conventions 146

IV. The Origin of Popular Ratification m New York . . .152 V. The Pennsylvania donvention of 1837-183§ .... 163

VI. The Revised Constitution of New York .... 171 Vn. The Question of Popular Ratification before Congress . .176

VIII. The American System 181

Appendix. The States of Latin America 192

Book II. Fbance

I. The Constitution of 1791 .. c .... 198

II. The Constitution of 1793 ....... 206

CONTENTS. xxi

GKAPTBB PAOB

m. The Constitation of the Tear ni 211

rv. The ConErtitations of the Consulate and Empire . .217

V. The Constitutions of the Restoration and the July Monarchy 224 VI. The Constitution of 1848. Popular Ratification and Uni-

versal Suffrage at the City Hall of Paris, Feb. 24, 1848 ^ 227

VII. The Constitutions of the Second Empire . . .230

Vm. The Constitutional Laws of 1876 248

Book ni. Switzbbland.

I. The Revolutionary Period 258

n. The Democratic Movement of 1830 .... 264 m. Popular Revision in the Cantons.

1. The Initiative 273

2. The Sanction .287

IV. Popular Revision in the Federal Constitution.

2. The Popular Vote of 1872 297

4. The Amendment of 1891 concerning the Initiative . 806

Index 349

THE ORIGIN, GROWTH, AND CHARACTER OF WRITTEN CONSTITUTIONS.

Chapter I. The ^^agbeement Of The People.*'

The conception, which may properly be called French, of a codified public law, sharply differentiated from ordinary legislation, stands to-daiy at the base of the modem state ; the exceptions of Great Britain and Hungary not invalidating the general rule. This conception was spread abroad throughout Europe by the French Revolution. It must not, however, be forgotten that the idea of a written constitution was entertained much earlier than 1789, and that it did not originate in France.

In certain respects the idea may be traced back to the Middle Ages, and even to ancient law, to the famous lex regia^ the source of the unlimited power of the Roman emperors. But this was only a formula expressing an unconditional delegation of sovereignty, a sort of general transfer of power, by which the prince was invested with the imperium and the potestaB^ without restrictions or limitations. The states of the Middle Ages were, indeed, familiar with charters by which liberties were confirmed, franchises granted, or privileges bestowed upon individuals, corporations, important vassals, orders, cities, communes, religious associations, mercantile companies, and industrial organizations, but they were not acquainted with constitutions of the type with which we are familiar, by which the rights of the individual are defined and the governing power is limited.

The constitutions adopted by the American colonies after their emancipation from the English rule are the first which the history of modern public law records. Imitating them, the French National Assembly codified its decrees, and imposed them in this unified form upon the king, in the name of the sovereign nation. It is therefore important to show where the Americans of 1776 had found the underlying principles of their constitutions, and to point out their precise origin. Such an investigation will give us a better conception of the character, a deeper understanding of the importance, of the innovation which they elBfected, and which the success of the Revolution has confirmed.

" The American Revolution was not a quarrel between two peoples, — the British people and the American people, — but, like all those events which mark the progress of the British race, it was a strife between two parties, — the conservatives in both countries as one party, and the liberals in both countries as the other party, — and some of its fiercest battles were fought in the British Parliament. . . . Both peoples had a common history in the events which led to the great Rebellion ; but in the reaction which followed the Restoration, that part of the British race which awaited the conflict in the old home passed again under the power of the prerogative, and, after the accession of William III. came under the domination of the great Whig families. . . . But those wha emigrated to the colonies left behind them institutions which were monarchical, in Church and State, and set up institutions which were democratic. And it was to preserve, not to acquire, these democratic institutions, that the liberal party carried the country through a long and costly war."^

1 Winsor, Narrative and Critical History of America, Vol. VI. 1-2.

THE ''AGREEMENT OF THE PEOPLE:' 5

Thus writes Mr. Mellen Chamberiain, former librarian of the Boston Public Library, and contributor to Mr. Justin -Winsor's recent important work on the history of America. It would be difficult to indicate more cleariy the real character of the American Revolution.

The great conflict which divided the Anglo-Saxon race from the close of the sixteenth century, driving forth its first victims to found New England, and ending, in 1649, in the execution of Charles I., was of a purely religious origin. This conflict had begun on the morrow of the Reformation between those who were thoroughly imbued with its spirit and had unreservedly adopted its principles with all that they logically involved, and those who remained the defenders of the ecclesiastical hierarchy and of political absolutism, holding fast to the compromise of Henry VIII., which broke with Rome without ceasing to combat Luther, and later, to that of Elizabeth, which founded the Church upon the episcopate and the royal supremacy. The Puritans, or "Nonconformists," — for such the Protestants were early called, — attacked at first the rites of the Anglican Church, but soon afterwards the episcopate and supremacy. The prince, being the head of the Church, and the interests of the latter being inseparable from the interests of the State, the quarrel was destined sooner or later to lose its religious character. The political agitation began even under Elizabeth, grew stronger under James I., the idle theorist, and became, under his son, who was too obedient to the paternal teaching, an open and victorious revolt. By that time the cause of non-conformity had become the cause of liberty.

At the culminating point of the Puritan Revolution, when Cromwell, swept on by the democratic movement, is compelled to follow it if he would become its master, a curious constitutional project is seen coming to the surface. This is the " Agreement of the People " presented by the army to the House of Commons, for its approval and eventual submission to the people. The idea of its authors, clearly stated in the document itself, and discussed in the pamphlets of the day, was the establishment of a supreme law, placed beyond the reach of Parliament, defining the powers of that body and expressly declaring the rights which the nation reserved to itself and which no authority might touch with impunity. This popular compact was to receive the personal adhesion of the citizens, according to a special procedure therein provided. Its promulgation depended upon its acceptance by the people.^ In the preliminary plan adopted by the regiments and submitted in 1647 to the General Council of the army is found this remarkable declaration : —

"That the power of this, and all future Representatives of this Nation, is inferior only to theirs who chuse them, and doth extend, without the consent or concurrence of any other person or persons, to the enacting, altering, and repealing of Lawes ; to the erecting and abolishing of Offices and Courts ; to the appointing, removing, and calling to account Magistrates, and Officers of all degrees ; to the making War and Peace, to the treating with f orraigne States : And generally, to whatsoever is not expressly, or implyedly reserved by the represented themselves."