THE MAKING AND MENDING OF CONSTITUTIONS.* DR. CHARLES BORGEADD'S book

on the Adoption and Amend- ment of Constitutions in Europe and America received the Rossi Prize from the Law Faculty of Paris, and is unques- tionably both a very learned and a very instructive work. The reader may or may not feel able to share the author's happy confidence in the progress of mankind under demo- cratic institutions, but he cannot fail to be obliged to Dr.

Borgeaud for the clearness of vision and firmness of step with which he acts as a guide among the intricacies of a most complicated subject. Onr author points out, what will be pretty generally admitted, that,—

" The democratic State is the one which most needs a strong written Constitution. In a Monarchy, where, de jure or de facto, the Prince possesses a personal power, minorities may find in him a protector. In a democracy the law, which is above the legis- lator himself, is their only safeguard against a usurping majority.

. . . . Constitutions, in order to be protective, must be stable and beyond the reach of the Legislature. Further, as being an expression of law which itself progresses under the action of the collective will, they must be capable of more or less easy modifica- tion, that thus the letter of the document may be kept in harmony

with the spirit of the national institutions This work of modification, this introduction of fundamental reforms, must necessarily be brought about in a normal way, methodically. To assure this, there have been inserted in most modern Constitutions what are called in France clauses de revision. These amendment clauses furnish a rapid, though not the only, means of determining the character of the processes of Constitution-making in those countries where Constitutions have been adopted. They form the principal subject of the present study."

This is a most interesting line of investigation, and not less so because it sometimes reveals proceedings on the part of

Constitution-makers markedly at variance with Dr. Borgeaud's high democratic views of the fitness of things. He finds the germ and inspiration of the American State Constitutions in the democratic ecclesiastical institutions of the Independents of New England. This is probably a sound view, though it must always be remembered that the democratic govern- ment of Independent Churches in New England or here was by no means the same thing as the participation in self-rule of all persons born within a given area, and fulfilling certain external conditions. To be admitted into the membership of an Independent Church it was necessary that the existing members of that Church should be satisfied that the candidate was a genuinely devout person and, at any rate for a long period, that he was strictly orthodox in his creed. There is nothing in any way corresponding or analo- gous to these tests of fitness for the exercise of rule in the modern democratic theory, either in the United States or anywhere else. It may well be understood that the early settlers being very largely, if not almost entirely, religious persons who were ready to give up their homes and go forth into the unknown wilderness to obtain religious freedom, it seemed to them natural and right that the basis of their civio polity should be as democratic as that of their ecclesiastical system. And so it was in Connecticut and Rhode Island from the first. In Massachusetts, the tendency of Puri- tanism towards strong government, of which the Protectorate afforded such striking evidence in the Old Country, prevailed for many years ; but subsequently, under the influence of Pastor John Wyse and of Locke, democratic principles in Church and State obtained complete mastery; and so it came about that the new Constitution which the " Bay State "

• Adoption and Amendment of Constitutions in Europe and America. By Charles Borgeaud. Awarded the Rossi Prize by the Law Faculty of Paris. Translated by Charles D. Hazen, Professor of History in Smith College. With an Intro- duction by John M. Vincent, Associate of the Johns Hopkins University. London; Macmillan and Co.

adopted in 1780 was considered, in Dr. Borgeaud's words, "the most perfect expression of the American theory, as understood *A the close of the Revolution." It was expressly based, as its preamble shows, on the thought, so closely associated with the name of Rousseau, " but which the Anglo-Saxons had not learned from him," that the body politic is "a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good." The Massachusetts Constitution was framed by a Convention specially elected for the purpose, and was subse- quently submitted to the suffrages of the people, and approved by a majority of more than two-thirds. It contained very explicit provisions for the possibility of revision after fifteen years. The qualified voters were then to be convened in their several localities, and their sentiments collected on the ques- tion of a revision of the Constitution ; and if it appeared that two-thirds of them were in favour of it, a Convention was to be elected to deal with the subject. The qualified voters, however, were so well content with the Constitution in 1795 that they declined to have any revision. The Massa- chusetts Constitution was revised in 1820 ; but in the mean- time, as Dr. Borgeaud explains, another New England State, Connecticut, had hit upon a plan providing for the need of a partial revision of State Constitutions—which was proving likely to be much more frequent than that for total revision— in a less cumbersome and costly manner than that above indicated, and Connecticut's improvement was subsequently improved on by Maine.

Dr. Borgeand sketches very clearly and in considerable detail the course of American practice with regard to the revision of State Constitutions, and says that the system may be summed up in the formula : " The sovereign people itself establishes its Constitution This act of supreme power," he proceeds, " has reference only to the final decision, to the approval of a plan the framing of which belongs either to the ordinary legislative power or to a Convention specially chosen for the purpose. In the latter case, the preliminary question as to whether such an assembly is desired or not is put to the sovereign itself, and is answered by a popular vote. This mode of amending Constitutions is employed more parti- cularly in cases of total revision." " The people," as Dr. Borgeaud points out, have only gradually obtained their " sovereignty in the States of the American Union. Their acquisition and exercise of it has been accompanied by a tendency to include in the State Constitutions which they establish or amend by their direct votes, various provisions relating to alcoholic liquor, Stock Exchange gambling, and other miscellaneous matters which to English notions seem altogether unsuitable for treatment in fundamental laws. Dr. Borgeaud's Helvetic enthusiasm for popular sovereignty makes him less keenly alive to the serious evils of such uses of it than Mr. John Vincent, who writes a thoughtful Intro- duction to the present volume. Those evils are fully discussed by Mr. Bryce, who arrives, it is true, at the conclusion that they are fewer and less grave in the present condition of the States, than the evils which direct legislation by the people prevents. The latter, on which Dr. Borgeaud lays stress, include such as would arise from the subjection of all State affairs to the management of Legislatures which have been " too often dishonoured " by " corruption and intrigue ;" and doubtless they are grave enough.

It would be interesting to know how the standards of political morality in Switzerland and its Cantons compare with those prevalent in the States of the American Union. Dr. Borgeaud, " as in private duty bound," gives a specially full treatment of the progress of constitutional change in Switzer- land during the past hundred years, and goes at length into the question of popular revision in regard to both the Federal and the various Cantonal Constitutions. Few of our readers, we imagine, realise the rich provision which exists for the detailed improvement or the entire recasting of Swiss institutions under popular auspices. If either Council of the Federal Assembly passes a resolution in favour of a total revision of the Federal Constitution, and the other Council does not agree, or if fifty thousand Swiss voters demand it, the question whether the Constitution ought to be revised is submitted to a vote of the Swiss people, and if the answer be affirmative by a majority of those voting, "there shall be a new election of both Councils for the purpose

of preparing the total revision." In deference to a " popu- lar initiative" of the same strength (fifty thousand electors), partial revision must be undertaken by the sitting Federal Assembly, if it agrees thereto. If not, the general body of voters shall be consulted as to whether there shall be a partial revision, and if they vote affirmatively, the Federal Assembly must take the revision in hand " in the sense of the people." Farther—and this is very interesting—when a petition is pre- sented (apparently by fifty thousand voters) in the form of a completed Bill, and the Federal Assembly agrees thereto, the Bill must be referred to the people and the Cantons for acceptance or rejection. In case the Federal Assembly does not agree, it may submit an alternative Bill of its own. The revised Constitution, or revised part of it, " shall take effect when it has been adopted by the majority of Swiss citizens who take part in the vote thereon, and by a majority of the Cantons." Rather bewildering as all this is to the non-legal mind, it is evident that the Swiss are working out some very interesting political experiments for the benefit of other demo- cratic countries. In particular the " initiative " given to fifty thousand amateur and irresponsible Constitution-menders, who apparently may propose to introduce legislation on any mortal subject into the Federal Constitution, seems to open the way to extensive log-rolling of a decidedly dangerous kind. Dr. Borgeaud is evidently anxious as to the working of the remarkable system above indicated, which only came into effect in 1891, and gives very good reasons for his anxiety, though he claims with pardonable national pride that the peasant voters of Switzerland are scouts, as it were, of the advance-guard of the army of nations, moving on into the unknown country of Democracy.

On the other hand, our author is compelled to acknowledge, with obvious pain, that France, so far from scouting ahead of the advance of the nations, is living under a Constitution which has never been referred to the sanction of the sovereign people, and to which, therefore, the stigma of an at least technical illegitimacy must, from the high democratic point of view, be allowed to attach. We do not mean that he makes this admission in so many words, but there can be no doubt as to his feeling on the subject. To begin with, the present French Constitution, as may be remembered, was name- less. It was the result of a compromise between Monarchists and Republicans, each of whom wished to keep the way open for the ultimate triumph of their party. It not only was not referred to the French people in any shape, but its " revision clause," which has from time to time been acted on, provides for no such reference, but merely for a joint Session of the two Chambers existing at the time when the revision takes place. Nothing more at variance with strict democratic theory could well be imagined. Dr- Borgeand holds that in order to give the " supreme law," or Constitution, of any State " a firm and solid basis, it must rest upon the express consent of the people. Until this consent is given the Constitution is vulnerable." That the present Constitution of France is vulnerable we should not dream of denying, but we doubt very much whether its vulnerability is

the greater because no plebiscite has ever been taken in its favour. Its definitely Republican character was proclaimed

eleven years ago, and its supporters have been returned over and over again in such decisive majorities that the Pope, with most statesmanlike wisdom, has given it his sanction. At the same time, we cordially recognise Dr. Borgeand's earnest .desire to secure, by a resort to the authority of the " sovereign people," in the case of constitutional measures, an effective protection for individual rights—which there is an increasing tendency, almost everywhere, to restrict, in the supposed interests of the community—and against funda- mental changes which may be contrary to the real state of public feeling. In this connection, the following passage is of great interest, and furnishes much food for reflection to us here in England :—

" In 1880 the Grand Council of the Canton of Geneva enacted a Constitutional law, separating the Church from the State. The Legislature had been chosen only recently. The question had not been put categorically in the course of the Election campaign ; but the victorious party had achieved a brilliant success. Sub. mitted to a popular vote, the law was rejected by an overwhelming majority, in an Election which showed the greatest proportion of participants ever recorded."

There can, we think, be no doubt that every sober British politician must agree that whatever changes be made in the Second Chamber here, it is of vital importance that England should always possess as great a certainty of a direct reference to the people of any fundamental change in our institutions, whether technically part of our Constitution or not, as is possessed by the Canton of Geneva. We will only add that the translation of Dr. Borgeaud's work by Professor Charles Hazen, of Smith College, is well done, though we must enter a gentle protest against the use of " transpire" for " occur," and of the terrible Americanism " right here."