CONSTITUTIONAL LAW 559 



the popular universal suffrage. It follows the different degree of 

 importance and of precision of the constitutional law among the 

 various peoples, the different way in which to conceive its essence, 

 its nature, the possible reforms, the problems, the extreme difficulties 

 of a scientific synthesis, to which the American constitution is yield- 

 ing itself as those of Europe are rebelling. Because not only Eng- 

 lish constitutional law is formed from texts and customs, from 

 laws and conventions, partly written, partly unwritten, but also in 

 the European states that we can truly call constitutional states, 

 besides the written law there is the tradition, having sometimes even 

 abrogative force. So in Italy, according to constitutional laws, the 

 King calls and recalls the Ministers, but according to the convention 

 he is obliged to call as Premier that one who is designated by the 

 parliamentary majority, and who will select the Ministers as your 

 President selects and recalls them; and our Premier is obliged to 

 give notice to the King, as your President to the Senate, although 

 King and Senate are retained authors of the revocation. Thus the 

 King is able to put the veto on a law, but in merit of the action of 

 parliamentary machinery need not do it, and if he should do it, we 

 could say that he has violated the convention of the constitution, 

 although remaining faithful to the constitutional law. 



The fundamental problem of our science of constitutional law 

 regards its own existence. Thomas Paine said that a constitution 

 cannot exist until every citizen can have it in his pocket. But 

 just the principal defect of written constitutions is the facility with 

 which so many have been put in their pocket by European princes 

 because they were not initiated into the ideas, into the lives, into 

 the habits of the people. X. de Maistre used to judge a constitution 

 as frail as the number of its written articles, 1 and Mackintosh said 

 that the constitutional laws must not be constructed with a slow 

 result of secular evolutions, but let them increase of themselves. On 

 the other hand, a written constitution is not the simple codification 

 of the customs and of the forms of a government, but is also a guar- 

 antee that customs and forms will never be such without the ap- 

 probation of those who have solemnly confirmed them. Besides 

 written constitutions there exist always customs, habits, traditions, 

 capable of having the greatest importance, and meanwhile it is not 

 possible to say that the shortest and most concise are the best. The 

 United States, for instance, is ever more feeling the necessity of 

 protecting itself against the abuses of legislatures and the intrigues 

 of politicians, and therefore your modern constitutions are all longer 

 than the ancient constitutions and have differences altogether more 

 complex. Beside precepts very statutory, I can read rules limiting 



1 De Maistre, Essai sur le principe generateur des constitutions ecrites, CEuvres, 

 Lyon, 1884, i, 243. 



