Excerpt from Constitutions

It has been suggested to me that of the sixteen Essays included in my Studies in History and Jurisprudence (which appeared in 1901) there are six that may with advantage be now published separately, because they all deal with a subject much studied in America and, to a less extent, in British Universities. These six, composed at different times, and several of them owing their origin to events that were then passing in the world, have a certain community of aim. All relate to Political Constitutions, the first two Essays being intended to indicate various points of view from which Constitutions may be examined and judged, while the other four serve to elucidate those points by concrete examples.

A Constitution is a Frame of Government designed to prescribe the form which the administration of a State takes, to define its powers over the citizen, and the rights of the citizen against it. It may be studied both in respect of its form and as a result of certain political forces. The first Essay, on Flexible and Rigid Constitutions, discusses the fundamental distinction between the two main classes into which frames of government fall, viz. Constitutions which can be changed by the ordinary legislative authority in the same way in which ordinary laws are enacted, and those which, because they cannot be so changed, stand above ordinary laws. It describes the character of each type, drawing illustrations chiefly from Rome, England, and the United States, considers the compatibility of each with democratic ideas and habits, and endeavours to appraise their respective merits, and to conjecture the part which each will play in the future.

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