The sun., 1908-06-21

Of the Legislature in Prussia as they are In
England This Is almost equally true Of
France under the Constitution OF 1875: for
although the changes in her organic law
must be mado by tho National Assembly.
composed Of the two chambers sitting to-
gether. yet the Assembly can meet only
after the tvo chambers have passed con-
current resolution TO that effect. As q
matter OF fact tho chambers arc in the
habit Of determining beforehand by separate
votes the amendments which shall be sub
mitted 10 tho National Assembly. 30 that
In Franco ola, tho Conshtlt ton 10 virtually
under tho unrestricted control of the leg
islature.
Again, In some countries the separation
OF constituent and law making powers has
been ronosrod OF much less practical i'm
pcrtanoe than lt seems 10 have been ak
pected " be. not only by making the process
Of amending tho constitution moro simple,
but also by making the enaotmspt Of or
dinary laws moro complex. Prof. Lowell
adduoes tho example Of SwitEorland. whore
changes In tho Constitution OF Is4s required
a popular vote. which changes In tho laws
did not; but after tho referendum on ordi-
nary laws was introduced In laaA this dis
tinction largely disappeared and at the
present day tho differences between the
method OF passing constitutional amend
ments and that Of passing ordinary laws
are comparatively slight. In the case OF
ordinary laws popular vote 10 taken only
on the petition OF at leest 600 citizens or
eight cantons, and the popular majority
Is decisive; whereas constitutional apend-
ments must be submitted to the people
whether petition Is presented or not. and
for their ratification majority vote In more
than half tho cantons is required. as well
as majority Of the voters in the Confedera-
ton viewed collectively. 1t 10 also pointed
out In q footnote that while constitutional
amendments may be proposed by popular
Initiative. ordinary laws cannot.
We are next reminded that In those Eu-
ropean countries where the difference In
the procedure for changing the Constitution
on the one hand and for enectlng statutes
on the other is the most marked. the special
iormalites for effecting the former change
consist In requiring more than a majority
vote In the Legislature. or. In requiring q
general election to take place before the
amendment Is finally adopted. Practically
the last OF these conditions is not unknown
in England. where feeling is growing that
no fundamental or far reaching change
ought TO be made unless as a result OF q
general election fought on that issue Parlia-
rnent shall have received from the nation
a special mandate to make the change.
The classical distinction between constitu-
ent and law making powers. and >conse-
quently between rigid and flexible con-
stitutions, has likewise been efaoed to some
extent by extending the requirement Of a
special procedure to tho enactment Of GER
tain classss OF ordinary laws. Thus in the
German Empire the only peculiar formality
prescribed for amendments to the federal
organic law is found In the provision that
proposed amendments may be defeated by
fourteen adverse votes In the Bundesrath
or Federal Council. This provision gives
Prussia. with her seventeen votes, veto
upon such amendments, but she also has q
veto in the Bundesrath upon any statutes
affecting the army. the navy. customs
duties or excuses.
1t seems, then, that the distinction be-
tween constitutions which are flexible and
those which are rigid has ceased TO mark
a sharp contrast betwcen widely separated
groups. 30 that it may now be convenient
to regard the distinction as one cf degree
rather than Of kind. Prof. Lowell thinks
that from this point Of view it may be said
that Of late years constitutions have tended.
on theyhole. to become more flexible, while
at the same time there has been tendency
toward greater variations In flexibility. the
Constitutions Of England and of Hungary
standing at one end Of the scale and that
OF the United States at the other. The
conception, indeed. OF q ,nstitution as a
law OF superior obligation which imposes
legal restraints upon the action OF the leg
islature s really confined to a very few
countries. In the States OF Continental
Europe IL has no proper place. for there
whether q constitution is or is not regarded
as q supreme law, no body Of men has as q
rule been entrusted with legal authority to
enforce it's provisions as against the leg
islature; and In England there is nc lsw
superior in obligation to an act Of Parlia-
ment. Professor Lowell, indeed. comedies
that the acts Of union with Scotland and
Ireland were originally intended to be. in
part at least. forever binding. but as they
created no authority with power either to
enforce or TO amend the acts the United
Parliament assumed that, like it's predeces-
sors, 1t possessed unlimited sovereignty.
and it has in fact altered material provi-
sons In each OF those statutes.
In a footnote the fact is recalled that
Prof. Dicey argued that the legal sov-
ereignty Of the Imperial Parliament might
have been restricted had the first Home
Rule bill been enacted, for under the pro-
visions Of that bill Ireland was to have q
legislature Of her own and was to retain
no representatives at Westminster. In
other words. had that bill become a law
the state Of things which had existed pre-
viously to the aot Of union would have
been revived and the Parliament at Dublin.
like the Parlia ment at Westminster, would
have become sovereign. This view in
volved the assumption that the act Of
union between Great Britain and Ireland
was essentially a treaty, which can only
be changed by the act OF both parties.
This view has been rejected by other stu
dents of Britains unwritten Constitution.
The conclusion. then. reached by Prof.
Lowell in his preparatory historical sketch
Is that the two chief peouliarities Of the
English Constitution are: First, that no
laws are earmarked as constitutional