express terms and distinct form on a given day, but it is a right originating in actual possession, which has not been contested for centuries. Their foundation is outside any law sanctioned by the seal of national sovereignty; it is therefore outside the Constitution in the sense in which this term is taken in France. And if these extra-constitutional powers look like a part of the Constitution, it is not because they have been made and consecrated by the Constitution, but because the Constitution has been created by them. The Constitution is nothing but the bringing to light of the settlement of frontiers fixed from time to time between these immemorial forces. These forces exist side by side; they perpetually expand, or withdraw their claims to authority, they constantly come into collision with and press upon each other, they make compromises, but they are never at rest.[1]
I have as yet spoken only of the superior powers. The state of the subordinate authorities, local or special, is no less peculiar. These subordinate authorities can generally, as in France, trace back their rights to a definite title granted to them by law at a fixed date; but this original title is so incomplete, and the grant so ancient, that both seem trifling in comparison with the prestige belonging to the fact of ancient possession and customary rights, which constant usage has grafted on to this primary legal basis. National
- ↑ “Of the three powers which exist together, each asserts its own rights but hardly knows their extent. The success of each thus depended on the time, the circumstances, and the king who was on the throne. England owes its existing Constitution to chance.” — D’Argenson, Considerations sur le Gouvernemeut, p. 38.
