the form of what are commonly called constitutional laws, or in the source from which they emanate, or in the degree of their authority, to mark them off from other laws. The Constitution of England is constantly changing, for as the legislature, in the ordinary exercise of its powers, frequently passes enactments which affect the methods of government and the political rights of the citizens, there is no certainty that what is called the Constitution will stand the same at the end of a given session of Parliament as it stood at the beginning.[1] A constitution of this kind, capable at any moment of being bent or turned, expanded or contracted, may properly be called a Flexible Constitution.
In countries of the other class the laws and rules which prescribe the nature, powers, and functions of the government are contained in a document or documents emanating from an authority superior to that of the legislature. This authority may be a monarch who has octroyé a charter alterable by himself only. Or it may be the whole people voting at the polls; or it may be a special assembly, or combination of assemblies, appointed ad hoc. In any case we find in such countries a law or group of laws distinguished from other laws not merely by the character of their contents, but by the source whence they
- ↑ The first statesman who remarked this seems to have been James Wilson, who said in 1788, "The idea of a constitution limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. There are at least no traces of practice conformable to such a principle. The British Constitution is just what the British Parliament pleases. When the Parliament transferred legislative authority to Henry VIII., the act transferring could not, in the strict acceptation of the term, be called unconstitutional. To control the powers and conduct of the legislature by an overruling constitution was an improvement in the science and practice of government reserved to the American States."—Elliot's Debates, ii. 432. Paley had made the observation relating to England in his Moral Philosophy, published shortly before 1787. Read and consider Oliver Cromwell's Instrument, called "The Government of the Commonwealth of England, Scotland, and Ireland," printed in the Parliamentary History, vol. iii. p. 1417. It was provided by this instrument that statutes passed in Parliament should take effect, even if not assented to by the Lord Protector, but only if they were agreeable to the articles of the instrument, which would therefore appear to have been a genuine Rigid constitution within the terms of the definition given in the text. Some of the provisions of the articles are so minute that they can hardly have been intended to be placed above change by Parliament; but Cromwell seems from the remarkable speech which he delivered on 16th December 1653, in promulgating the Instrument, to have conceived that what he called the Fundamentals should be unchangeable.
