The Online Library of Liberty

A project of Liberty Fund, Inc.

• Pubusher's Note
• Foreword
• Preface to the First Edition
• Preface to the Eighth Edition
• Introduction
• Outline of Subject: the True Nature of Constitutional Law
• Part I: The Sovereignty of Parliament
• Chapter I: The Nature of Parliamentary Sovereignty
• Chapter II: Parliament and Non-sovereign Law-making Bodies
• Chapter III: Parliamentary Sovereignty and Federalism
• Part II: The Rule of Law
• Chapter IV: The Rule of Law: Its Nature and General Applications
• Chapter V: The Right to Personal Freedom
• Chapter VI: The Right to Freedom of Discussion
• Chapter VII: The Right of Public Meeting 1
• Chapter VIII: Martial Law
• Chapter IX: The Army 1
• Chapter X: The Revenue 1
• Chapter XI: The Responsibility of Ministers
• Chapter XII: Rule of Law Compared With Droit Administratif 1
• Chapter XIII: Relation Between Parliamentary Sovereignty and the Rule of Law
• Part III: The Connection Between the Law of the Constitution and the Conventions of the Constitution
• Chapter XIV: Nature of Conventions of Constitution
• Chapter XV: The Sanction By Which the Conventions of the Constitution Are Enforced
• Appendix
• Note I: Rigidity of French Constitutions
• Note II: Division of Powers In Federal States
• Note III: Distinction Between a Paruamentary Executive and a Non-parliamentary Executive
• Note IV: The Right of Self-defence
• Note V: Questions Connected With the Right of Public Meeting
• Note VI: Duty of Soldiers Called Upon to Disperse an Unlawful Assembly
• Note VII: The Meaning of an “unconstitutional” Law
• Note VIII: Swiss Federalism 89
• Note IX: Australian Federalism 101
• Note X: Martial Law In England During Time of War Or Insurrection 121
• Note XI: Constitution of the Tribunal Des Conflits 159
• Note XII: Proceedings Against the Crown
• Note XIII: Parliament Act, 1911 [i & 2 Geo. 5. Ch. Ch. 13.]

Note I

RIGIDITY OF FRENCH CONSTITUTIONS

Twelve constitutions1 have been framed by French constitution-makers since the meeting of the States General in 1789.

A survey of the provisions (if any) contained in these constitutions for the revision thereof leads to some interesting results.

First, with but two exceptions, every French constitution has been marked by the characteristic of “rigidity.” Frenchmen of all political schools have therefore agreed in the assumption, that the political foundations of the State must be placed beyond the reach of the ordinary legislature, and ought to be changed, if at all, only with considerable difficulty, and generally after such delay as may give the nation time for maturely reflecting over any proposed innovation.

In this respect the Monarchical Constitution of 1791 is noteworthy. That Constitution formed a legislature consisting of one Assembly, but did not give this Assembly or Parliament any authority to revise the Constitution. The only body endowed with such authority was an Assembly of Revision (Assemblée de Révision), and the utmost pains were taken to hamper the convening and to limit the action of the Assembly of Revision. The provisions enacted with this object were in substance as follows:—An ordinary Legislative Assembly was elected for two years. No change in the Constitution could take place until three successive Legislative Assemblies should have expressed their wish for a change in some article of the Constitution. On a resolution in favour of such reform having been carried in three successive legislatures or Parliaments, the ensuing Legislative Assembly was to be increased by the addition of 249 members, and this increased Legislature was to constitute an Assembly of Revision.

This Assembly of Revision was tied down, as far as the end could be achieved by the words of the Constitution, to debate on those matters only which were submitted to the consideration of the Assembly by the resolution of the three preceding legislatures. The authority, therefore, of the Assembly was restricted to a partial revision of the Constitution. The moment this revision was finished the 249 additional members were to withdraw, and the Assembly of Revision was thereupon to sink back into the position of an ordinary legislature. If the Constitution of 1791 had continued in existence, no change in its articles could, under any circumstances, have been effected in less than six years. But this drag upon hasty legislation was not, in the eyes of the authors of the Constitution, a sufficient guarantee against inconsiderate innovations.2 They specially provided that the two consecutive legislative bodies which were to meet after the proclamation of the Constitution, should have no authority even to propose the reform of any article contained therein. The intended consequence was that for at least ten years (1791–1801) the bases of the French government should remain unchanged and unchangeable.3

The Republicans of 1793 agreed with the Constitutionalists of 1791 in placing the foundations of the State outside the limits of ordinary legislation, but adopted in different method of revision. Constitutional changes were under the Constitution of 1793 made dependent, not on the action of the ordinary legislature, but on the will of the people. Upon the demand of a tenth of the primary assemblies in more than half of the Departments of the Republic, the legislature was bound to convoke all the primary assemblies, and submit to them the question of convening a national convention for the revision of the Constitution. The vote of these Assemblies thereupon decided for or against the meeting of a convention, and therefore whether a revision should take place.

Assuming that they decided in favour of a revision, a convention, elected in the same manner as the ordinary legislature, was to be forthwith convened, and to occupy itself as regards the Constitution with those subjects only which should have caused (ont motive) the convention to be assembled. On the expressed wish, in short, of the majority of the citizens, a legislature was to be convoked with a limited authority to reform certain articles of the Constitution.4

The Republican and Directorial Constitution again, of 1795, rested, like its predecessors, on the assumption that it was of primary importance to make constitutional changes difficult, and also recognised the danger of again creating a despotic sovereign assembly like the famous, and hated, Convention.

The devices by which it was sought to guard against both sudden innovations, and the tyranny of a constituent assembly, can be understood only by one who remembers that, under the Directorial Constitution, the legislature consisted of two bodies, namely, the Council of Ancients, and the Council of Five Hundred. A proposal for any change in the Constitution was necessarily to proceed from the Council of Ancients, and to be ratified by the Council of Five Hundred. After such a proposal had been duly made and ratified thrice in nine years, at periods distant from each other by at least three years, an Assembly of Revision was to be convoked. This Assembly constituted what the Americans now term a “constitutional convention.” It was a body elected ad hoc, whose meeting did not in any way suspend the authority of the ordinary legislature, or of the Executive. The authority of the Assembly of Revision was further confined to the revision of those articles submitted to its consideration by the legislature. It could in no case sit for more than three months, and had no other duty than to prepare a plan of reform (projet de reforme) for the consideration of the primary Assemblies of the Republic. When once this duty had been performed, the Assembly of Revision was ipso facto dissolved. The Constitution not only carefully provided that the Assembly of Revision should take no part in the government, or in ordinary legislation, but also enacted that until the changes proposed by the Assembly should have been accepted by the people the existing Constitution should remain in force.

The Consular and Imperial Constitutions, all with more or less directness, made changes in the Constitution depend, first, upon a senatus consultum or resolution of the Senate; and, next, on the ratification of the change by a popular vote or plebiscite,5 This may be considered the normal Napoleonic system of constitutional reform. It makes all changes dependent on the will of a body, if effect, appointed by the Executive, and makes them subject to the sanction of a popular vote taken in such a manner that the electors can at best only either reject or, as in fact they always have done, affirm the proposals submitted to them by the Executive. No opportunity is given for debate or for amendments of the proposed innovations. We may assume that even under the form of Parliamentary Imperialism sketched out in the Additional Act of 23rd April 1815, the revision of the Constitution was intended to depend on the will of the Senate and the ratification of the people. The Additional Act is, however, in one respect very remarkable. It absolutely prohibits any proposal which should have for its object the Restoration of the Bourbons, the re-establishment of feudal rights, of tithes, or of an established Church (culte privilégié et dominant), or which should in any way revoke the sale of the national domains, or, in other words, French landowners. This attempt to place certain principles beyond the influence, not only of ordinary legislation but of constitutional change, recalls to the student of English history the Cromwellian Constitution of 1653, and the determination of the Protector that certain principles should be regarded as “fundamentals” not to be touched by Parliament, nor, as far as would appear, by any other body in the State.

The Republic of 1848 brought again into prominence the distinction between laws changeable by the legislature in its ordinary legislative capacity, and articles of the Constitution changeable only with special difficulty, and by an assembly specially elected for the purpose of revision. The process of change was elaborate. The ordinary legislative body was elected for three years. This body could not itself modify any constitutional article. It could however, in its third year, resolve that a total or partial revision of the Constitution was desirable; such a resolution was invalid unless voted thrice at three sittings, each divided from the other by at least the period of a month, unless 500 members voted, and unless the resolution were affirmed by three-fourths of the votes given.

On the resolution in favour of a constitutional change being duly carried, there was to be elected an assembly of revision. This assembly, elected for three months only, and consisting of a larger number than the ordinary legislature, was bound to occupy itself with the revision for which it was convoked, but might, if necessary, pass ordinary laws. It was therefore intended to be a constituent body superseding the ordinary legislature.6

The second Empire revived, in substance, the legislative system of the first, and constitutional changes again became dependent upon a resolution of the Senate, and ratification by a popular vote.7

The existing Republic is, in many respects, unlike any preceding polity created by French statesmanship. The articles of the Constitution are to be found, not in one document, but in several constitutional laws enacted by the National Assembly which met in 1871. These laws however cannot be changed by the ordinary legislature —the Senate and the Chamber of Deputies—acting in its ordinary legislative character. The two Chambers, in order to effect a change in the constitutional manner, must, in the first place, each separately resolve that a revision of the Constitution is desirable. When each have passed this resolution, the two Chambers meet together, and when thus assembled and voting together as a National Assembly, or Congress, have power to change any part, as they have in fact changed some parts, of the constitutional laws.8

I have omitted to notice the constitutional Charter of 1814, granted by Louis XVIII., and the Charter of 1830, accepted by Louis Philippe. The omission is intentional. Neither of these documents contains any special enactments for its amendment. An Englishman would infer that the articles of the Charter could be abrogated or amended by the process of ordinary legislation. The inference may be correct. The constitutionalists of 1814 and 1830 meant to found a constitutional monarchy of the English type, and therefore may have meant the Crown and the two Houses to be a sovereign Parliament. The inference however, as already pointed out,9 is by no means certain. Louis XVIII. may have meant that the articles of a constitution granted as a charter by the Crown, should be modifiable only at the will of the grantor. Louis Philippe may certainly have wished that the foundations of his system of government should be legally immutable. However this may have been, one thing is clear, namely, that French constitutionalists have, as a rule, held firmly to the view that the foundations of the Constitution ought not to be subject to sudden changes at the will of the ordinary legislature.

Secondly, French statesmen have never fully recognised the inconveniences and the perils which may arise from the excessive rigidity of a constitution. They have hardly perceived that the power of a minority to place a veto for a period of many years on a reform desired by the nation provides an excuse or a reason for revolution. The authors of the existing Republic have, in this respect, learnt something from experience. They have indeed preserved the distinction between the Constitution and ordinary laws, but they have induded but a small number of rules among constitutional articles, and have so facilitated the process of revision as to make the existing chambers all but a sovereign Parliament. Whether this is on the whole a gain or not, is a point on which it were most unwise to pronounce an opinion. All that is here insisted upon is that the present generation of Frenchmen have perceived that a constitution may be too rigid for use or for safety.10

Thirdly, an English critic smiles at the labour wasted in France on the attempt to make immutable Constitutions which, on the average, have lasted about ten years apiece. The edifice, he reflects, erected by the genius of the first great National Assembly, could not, had it stood, have been legally altered till 1801—that is, till the date when, after three constitutions had broken down, Bonaparte was erecting a despotic Empire. The Directorial Republic of 1795 could not, if it had lasted, have been modified in the smallest particular till 1804, at which date the Empire was already in full vigour.

But the irony of fate does not convict its victims of folly, and, if we look at the state of the world as it stood when France began her experiments in constitution-making, there was nothing ridiculous in the idea that the fundamental laws of a country ought to be changed but slowly, or in the anticipation that the institutions of France would not require frequent alteration. The framework of the English Constitution had, if we except the Union between England and Scotland, stood, as far as foreigners could observe, unaltered for a century, and if the English Parliament was theoretically able to modify any institution whatever, the Parliaments of George III. were at least as little likely to change any law which could be considered constitutional as a modem Parliament to abolish the Crown. In fact it was not till nearly forty years after the meeting of the States General (1829) that any serious modification was made in the form of the government of England. No one in France or in England could a century ago foresee the condition of pacific revolution to which modern Englishmen had become so accustomed as hardly to feel its strangeness. The newly-founded Constitution of the United States showed every sign of stability, and has lasted more than a century without undergoing any material change of form. It was reasonable enough therefore for the men of 1789 to consider that a well-built constitution might stand for a long time without the need of repair.

Fourthly, the errors committed by French constitutionalists have been, if we may judge by the event, in the main, twofold. Frenchmen have always been blind to the fact that a constitution may be undermined by the passing of laws which, without nominally changing its provisions, violate its principles. They have therefore failed to provide any adequate means, such as those adopted by the founders of the United States, for rendering unconstitutional legislation inoperative. They have in the next place, generally, though not invariably, underrated the dangers of convoking a constituent assembly, which, as its meeting suspends the authority of the established legislature and Executive, is likely to become a revolutionary convention.

Fifthly, the Directorial Constitution of 1795 is, from a theoretical point of view, the most interesting among the French experiments in the art of constitution-making. Its authors knew by experience the risks to which revolutionary movements are exposed, and showed much ingenuity in their devices for minimising the perils involved in revisions of the Constitution. In entrusting the task of revision to an assembly elected ad hoc, which met for no other purpose, and which had no authority to interfere with or suspend the action of the established legislative bodies or of the Executive, they formed a true constitutional convention in the American sense of that term,11 and, if we may judge by transatlantic experience, adopted by far the wisest method hitherto invented for introducing changes into a written and rigid constitution. The establishment, again, of the principle that all amendments voted by the Assembly of Revision must be referred to a popular vote, and could not come into force until accepted by me people, was an anticipation of the Referendum which has now taken firm root in Switzerland, and may, under one shape or another, become in the future a recognised part of all democratic politics. It is worth while to direct the reader's attention to the ingenuity displayed by the constitution-makers of 1795, both because their resourcefulness stands in marked contrast with the want of inventiveness which marks the work of most French constitutionalists, and because the incapacity of the Directorial Government, in the work of administration, has diverted attention from the skill displayed by the founders of the Directorate in some parts of their constitutional creation.

[1]Viz. (1) The Monarchical Constitution of 1792; (2) the Republican Constitution of 1793; (3) the Republican Constitution of 1795 (Directory), 5 Fruct. An. III.; (4) the Consular Constitution of the Year VIII. (1799); (5) the Imperial Constitution, 1804; (6) the Constitution proclaimed by the Senate and Provisional Government, 1814; (7) the Constitutional Charter, 1814 (Restoration); (8) the Additional Act (Acte Additionnel), 1815, remodelling the Imperial Constitution; (9) the Constitutional Charter of 1830 (Louis Philippe);(10) the Republic of 1848; (11) the Second Imperial Constitution, 1852; (12) the present Republic, 1870–75. See generally Hélie, Les Constitutions de la France; and Duguit et Monnier, Les Constitutions de la France (Deuxième ed.).

It is possible either to lengthen or to shorten the list of French Constitutions according to the view which the person forming the list takes of the extent of the change in the arrangements of a state necessary to form a new constitution.

[2]A resolution was proposed, though not carried, that the articles of the Constitution should be unchangeable for a period of thirty years. Hélie, Les Constitutions de la France, p. 302.

[3]See Constitution of 1791, Tit. vii.

[4]Constitution du 5 Fructidor, An. III., articles 336–350, Hélie, pp. 436,463, 464.

[5]See Hélie, Les Constitutions de la France, pp. 696–698.

[6]See Constitution, 1848, art. 111.

[7]Ibid. 1852, arts. 31, 32; Hélie, p. 1170.

[8]See Constitutional Law, 1855, art. 8.

[9]See pp. 62–63, ante.

[10]See as to the circumstances which explain the character of the existing Constitution of France, Lowell, Governments and Parties in Continental Europe, i. pp. 7–14, and note that the present constitution has already lasted longer than any constitution which has existed in France since 1789.

[11]See the word “Convention” in the American Encyclopædia ot American Science; and Bryce, American Commonwealth, i. (3rd ed.), App. on Constitutional Conventions, p. 667.