Chapter 3

(C. E.*)

1The historical development of star-catalogues in general, regarded as statistics of the co-ordinates, &c., of stars, is given in the historical section of the articleAstronomy. See also E. B. Knobel, “Chronology of Star Catalogues,”Mem. R.A.S.(1877).

CONSTIPATION(from Lat.constipare, to press closely together, whence also the adjective “costive”), the condition of body when the faeces are unduly retained, or there is difficulty in evacuation, tightness of the bowels (seeDigestive Organs; andTherapeutics). It may be due to constitutional peculiarities, sedentary or irregular habits, improper diet, &c. The treatment varies with individual cases, according to the cause at work, laxatives, dieting, massage, &c., being prescribed.

CONSTITUENCY(from “constituent,” that which forms a necessary part of a thing; Lat.constituere, to create), a political term for the body of electors who choose a representative for parliament or for any other public assembly, for the place or district possessing the right to elect a representative, and for the residents generally, apart from their voting powers, in such a locality. The term is also applied, in a transferred sense, to the readers of a particular newspaper, the customers of a business and the like.

CONSTITUTION AND CONSTITUTIONAL LAW.The word constitution (constitutio) in the time of the Roman empire signified a collection of laws or ordinances made by the emperor. We find the word used in the same sense in the early history of English law,e.g.the Constitutions of Clarendon. In its modern use constitution has been restricted to those rules which concern the political structure of society. If we take the accepted definition of a law as a command imposed by a sovereign on the subject, the constitution would consist of the rules which point out where the sovereign is to be found, the form in which his powers are exercised, and the relations of the different members of the sovereign body to each other where it consists of more persons than one. In every independent political society, it is assumed by these definitions, there will be found somewhere or other a sovereign, whether that sovereign be a single person, or a body of persons, or several bodies of persons. The commands imposed by the sovereign person or body on the rest of the society are positive laws, properly so called. The sovereign body not only makes laws, but has two other leading functions, viz. those of judicature and administration. Legislation is for the most part performed directly by the sovereign body itself; judicature and administration, for the most part, by delegates. The constitution of a society, accordingly, would show how the sovereign body is composed, and what are the relations of its membersinter se, and how the sovereign functions of legislation, judicature and administration are exercised. Constitutional law consists of the rules relating to these subjects, and these rules may either be laws properly so called, or they may not—i.e. they may or may not be commands imposed by the sovereign body itself. The English constitutional rule, for example, that the king and parliament are the sovereign, cannot be called a law; for a law presupposes the fact which it asserts. And other rules, which are constantly observed in practice, but have never been enacted by the sovereign power, are in the same way constitutional laws which are not laws. It is an undoubted rule of the English constitution that the king shall not refuse his assent to a bill which has passed both Houses of Parliament, but it is certainly not a law. Should the king veto such a bill his action would be unconstitutional, but not illegal. On the other hand the rules relating to the election of members to the House of Commons are nearly all positive laws strictly so called. Constitutional law, as the phrase is commonly used, would include all the laws dealing with the sovereign body in the exercise of its various functions, and all the rules, not being laws properly so called, relating to the same subject.

The above is an attempt to indicate the meaning of the phrases in their stricter or more technical uses. Some wider meanings may be noticed. In the phrase constitutionalgovernment, a form of government based on certain principles which may roughly be called popular is the leading idea. Great Britain, Switzerland, the United States, are all constitutional governments in this sense of the word. A country where a large portion of the people has some considerable share in the supreme power would be a constitutional country. On the other hand, constitutional, as applied to governments, may mean stable as opposed to unstable and anarchic societies. Again, as a term of party politics, constitutional has come to mean, in England, not obedience to constitutional rules as above described, but adherence to the existing type of the constitution or to some conspicuous portions thereof,—in other words, conservative.

The ideas associated with constitution and constitutionalism are thus, it will be seen, mainly of modern and European origin. They are wholly inapplicable to the primitive and simple societies of the present or of the former times. The discussion of forms of government occupies a large space in the writings of the Greek philosophers,—a fact which is to be explained by the existence among the Greeks of many independent political communities, variously organized, and more or less democratic in character. Between the political problems of the smaller societies and those of the great European nations there is no useful parallel to be drawn, although the predominance of classical learning made it the fashion for a long time to apply Greek speculations on the nature of monarchy, aristocracy, and democracy to public questions in modern Europe.Representation(q.v.), the characteristic principle of European constitutions, has, of course, no place in societies which were not too large to admit of every free citizen participating personally in the business of government. Nor is there much in the politics or the political literature of the Romans to compare with the constitutions of modern states. Their political system, almost from the beginning of empire, was ruled absolutely by a small assembly or by one man.

The impetus to constitutional government in modern times has to a large extent come from England, and it is from English politics that the phrase and its associations have been borrowed. England has offered to the world the one conspicuous example of a long, continuous, and orderly development of political institutions. The early date at which the principle of self-government was established in England, the steady growth of the principle, the absence of civil dissension, and the preservation in the midst of change of so much of the old organization, have given its constitution a great influence over the ideas of politicians in other countries. This fact is expressed in the proverbial phrase—“England is the mother of parliaments.” It would not be difficult to show that the leading features of the constitutions now established in other nations have been based on, or defended by, considerations arising from the political history of England.

In one important respect England differs conspicuously from most other countries. Her constitution is to a large extentunwritten, using the word in much the same sense as when we speak of unwritten law. Its rules can be found in no written document, but depend, as so much of English law does, on precedent modified by a constant process of interpretation. Many rules of the constitution have in fact a purely legal history, that is to say, they have been developed by the law courts, as part of the general body of the common law. Others have in a similar way been developed by the practice of parliament. Both Houses, in fact, have exhibited the same spirit of adherence to precedent, coupled with a power of modifying precedent to suit circumstances, which distinguishes the judicial tribunals. In a constitutional crisis the House of Commons appoints a committee to “search its journals for precedents,” just as the court of king’s bench would examine the records of its own decisions. And just as the law, while professing to remain the same, is in process of constant change, so, too, the unwritten constitution is, without any acknowledgment of the fact, constantly taking up new ground.

In contrast with the mobility of an unwritten constitution is the fixity of a constitution written out, like that of the United States or Switzerland, in one authoritative code. The constitution of the United States, drawn up at Philadelphia in 1787, is contained in a code of articles. It was ratified separately by each state, and thenceforward became the positive and exclusive statement of the constitution. The legislative powers of the legislature are not to extend to certain kinds of bills, e.g.ex post factobills; the president has a veto which can only be overcome by a majority of two-thirds in both Houses; the constitution itself can only be changed in any particular by the consent of the legislatures or conventions of three-fourths of the several states; and finally the judges of the Supreme Court are to decide in all disputed cases whether an act of the legislature is permitted by the constitution or not.

The constitution of the United States is the supreme law of the land as to the matters which it embraces. The constitution of each state is the supreme law of the state, except so far as it may be controlled by the constitution of the United States. Every statute in conflict with the constitution to which it is subordinate is void so far as this conflict extends. If it concerns only a distinct and separable part of the statute, that part only is void. Every court before which a statutory right or defence is asserted has the power to inquire whether the statute in question is or is not in conflict with the paramount constitution. This power belongs even to a justice of the peace in trying a cause. He sits to administer the law, and it is for him to determine what is the law. Inferior courts commonly decline to hold a statute unconstitutional, even if there may appear to be substantial grounds for such a decision. The presumption is always in favour of the validity of the law, and they generally prefer to leave the responsibility of declaring it void to the higher courts.

The judges of the state courts are bound by their oath of office to support the constitution of the United States. They have an equal right with those of the United States to determine whether or how far it affects any matter brought in question in any action. So, vice versa, the judges of the United States courts, if the point comes up on a trial before them, have the right to determine whether or how far the constitution of a state invalidates a statute of the state. They, however, are ordinarily bound to follow the views of the state courts on such a question. They are not bound by any decision of a state court as to the effect of the constitution of the United States on a state statute or any other matter. This judicial power of declaring a statute void because unconstitutional has been not infrequently exercised, from the time when the first state constitutions were adopted.

Juries in criminal causes are sometimes made by American statutes or recognized by American practice as judges of the law as well as the fact. The better opinion is that this does not make them judges of whether a law on which the prosecution rests violates the paramount constitution and is therefore void (United Statesv.Callender, Wharton’sState Trials, 688;Statev.Main, 69 Connecticut Reports, 123, 128).

If a state court decides a point of constitutional law, set up under the constitution of the United States, against the party relying upon it, and this decision is affirmed by the state court of last resort, he may sue out a writ of error, and so bring his case before the Supreme Court of the United States. If the state decision be in his favour, the other side cannot resort to like proceedings.

A decree of the Supreme Court of the United States on a point of construction arising under the constitution of the United States settles it for all courts, state and national.

The salient characteristic of the United States constitution is, perhaps, its formidable apparatus of provisions against change; and, in fact, only 15 constitutional amendments had been adopted from 1789 up to 1909, the last being in 1870. In the same period the unwritten constitution of England has made a most marked advance, chiefly in the direction of democratizing the monarchy, and diminishing the powers of the House of Lords. The House of Commons has continuously asserted its legislative predominance, and has reduced the other House to the position of a revising chamber, which in the last resort, however, can produce a legislative deadlock, subject to the results of a new generalelection (seeParliament). And the cabinet, which depends on the support of the House of Commons, has become more and more the executive council of the realm. One conspicuous feature of the English constitution, by which it is broadly distinguished from written or artificial constitutions, is the presence throughout its entire extent of legal fictions. The influence of the lawyers on the progress of the constitution has already been noticed, and is nowhere more clearly shown than in this peculiarity of its structure. As in the common law, so in the constitution, change has been effected in substance without any corresponding change in terminology. There is hardly one of the phrases used to describe the position of the crown which can be understood in its literal sense, and many of them are currently accepted in more senses than one. The American constitution of 1789 reproduced, however, in essentials, and with necessary modifications, the contemporary British model, and, where it did so, has preserved the old conception of what was then the British system of Government. The position and powers of the president were a fair counterpart of the royal prerogative of that day; the two houses of Congress corresponded sufficiently well to the House of Lords and the House of Commons, allowing for the absence of the elements of hereditary rank and territorial influence. While the English constitution has changed much, the American constitution has changed very little in these respects. Allowing for the more democratic character of the constituencies, the organization of the supreme power in the United States is nearer the English type of the 18th century—is, in fact, less elastic than in the United Kingdom.

On the other hand, it is not uncommon to misinterpret the rigidity of the United States constitution, from a regard rather to the theory which its text suggests than to the practical working of the machine. For the letter of the constitution has to some extent been modified, if not technically amended, in various respects by judicial interpretation, and by use and wont (e.g. as regards the election of the president). This side of the matter may be studied in C. G. Tiedeman’s work cited below. Moreover, even in respect of the 18th-century British character attaching to the constitution, as drawn up in 1787, it has to be remembered that this was not taken direct from England. As several American constitutional historians have elaborately shown (e.g. A. C. McLaughlin, inThe Confederation and the Constitution, 1905), the English idea had already been developed in various directions during the preceding colonial period, and the constitution really represented the English constitutional usageas known in America, into which the Philadelphia convention introduced new features corresponding to the prevailing civil conditions or suggested by English analogy. It is important to emphasize this point, since the resemblance of the American constitution of 1789 to the contemporary English constitution has sometimes been exaggerated; but the fact remains that the written constitution has been less susceptible of development than the unwritten.

Between England and some other constitutional countries a difference of much constitutional importance is to be found in the terms on which the component parts of the country were brought together. All great societies have been produced by the aggregation of small societies into larger and larger groups. In England the process of consolidation was completed before the constitution settled down into its present form. In the United States, on the other hand, in Switzerland, and in Germany the constitution is in form an alliance among a number of separate states, each of which may have a constitution and laws of its own for local purposes. In federal governments it remains a question how far the independence of individual states has been sacrificed by submission to a constitution. In the United States constitutional progress is hampered by the necessity thus created of having every amendment ratified by the separate vote of three-fourths of the states.

See alsoGovernment;Sovereignty;Cabinet;Prerogative, &c., and the section on Government or Constitution in the articles on the various countries. The standard work on the English constitution is Sir William Anson’sLaw and Custom of the Constitution(1st ed. 1886; 3rd ed. 1909); see also A. L. Lowell,The Governmentof England(1908); W. Bagehot,The English Constitution; S. Low,The Governance of England(1904); A. V. Dicey,The Law of the Constitution(7th ed. 1909); W. Stubbs,Constitutional History of England(1878); R. Gneist,History of the English Constitution(Engl. trans. 1886); J. Macy,The English Constitution(New York, 1897); E. W. Ridges,Constitutional Law of England(1905); F. W. Maitland,Constitutional History of England(1908); G. B. Adams and H. M. Stephens,Select Documents of English Constitutional History(New York, 1901). For America, see C. E. Stevens,Sources of the Constitution of the United States(London and New York, 1894); G. T. Curtis,Constitutional History of the United States(2 vols., New York, 1889-1896); T. McI. Cooley,General Principles of Constitutional Law in the United States(Boston, 1880; 3rd ed. 1898); S. G. Fisher,Evolution of the Constitution of the United States(Philadelphia, 1897); J. I. C. Hare,American Constitutional Law(2 vols., Boston, 1889); J. F. Jameson (ed.),Essays on the Constitutional History of the United States in the Formative Period, 1775-1789(Boston, 1889); W. M. Meigs,Growth of the Constitution in the Federal Convention of 1787(Philadelphia, 1900); and C. G. Tiedeman,Unwritten Constitution of the United States(New York, 1890). Also A. L. Lowell,Government and Parties in Continental Europe(2 vols., 1896); W. F.Dodd, Modern Constitutions(2 vols., Chicago, 1909), a collection of the fundamental laws of twenty-two of the most important countries.

“CONSTITUTION OF ATHENS”(Άθηναίων πολιτεία), a work attributed to the philosopher Aristotle (384-322 B.C.), forming one of a series ofConstitutions(πολιτείαι), 158 in number, which treated of the institutions of the various states in the Greek world. It was extant until the 7th century of our era, or to an even later date, but was subsequently lost. A copy of this treatise, written in four different hands upon four rolls of papyrus, and dating from the end of the 1st century A.D., was discovered in Egypt, and acquired by the trustees of the British Museum, for whom it was edited by F. G. Kenyon, assistant in the manuscript department, and published in January 1891. Some very imperfect fragments of another copy had been acquired by the Egyptian Museum at Berlin, and were published in 1880.

Authorship.—It may be regarded as now established that the treatise discovered in Egypt is identical with the work upon the constitution of Athens that passed in antiquity under the name of Aristotle. The evidence derived from a comparison of the British Museum papyrus with the quotations from the lost work of Aristotle’s which are found in scholiasts and grammarians is conclusive. Of fifty-eight quotations from Aristotle’s work, fifty-five occur in the papyrus. Of thirty-three quotations from Aristotle, which relate to matters connected with the constitution, or the constitutional history of Athens, although they are not expressly referred to theΆθηναίων πολιτεία, twenty-three are found in the papyrus. Of those not found in the papyrus, the majority appear to have come either from the beginning of the treatise, which is wanting in the papyrus, or from the latter portion of it, which is mutilated. The coincidence, therefore, is as nearly as possible complete. It may also be regarded as established by internal evidence that the treatise was composed during the interval between Aristotle’s return to Athens in 335 B.C. and his death in 322. There are two passages which give us the latter year as theterminus ad quem, viz. c. 42. 1 and c. 62. 2. In the former passage the democracy which is about to be described is spoken of as the “present constitution” (ἡ νῦν κατάστασις τῆς πολιτείας). The democratic constitution was abolished, and a timocracy established, on the surrender of Athens to Antipater, at the end of the Lamian War, in the autumn of 322. At the same time Samos was lost; it is still reckoned, however, among the Athenian possessions in the latter passage. On the other hand, the foreign possessions of Athens are limited to Lemnos, Imbros, Scyros, Delos and Samos. This could only apply to the period after Chaeronea (338 B.C.). In c. 61. 1, again, mention is made of a special Strategusἐπὶ τὰς συμμορίας; but it can be proved from inscriptions that down to the year 334 the generals werecollectivelyconcerned with the symmories. Finally, in c. 54. 7 an event is dated by the archonship of Cephisophon (329). We thus get the years 329 and 322 as fixing the limits of the period to which the composition of the work must be assigned. It follows that, whether it is by Aristotle or not, its date is later than that of thePolitics, in which there is no reference to any event subsequent to the death of Philip in 336.

The only question as to authorship that can fairly be raised is the question whether it is by Aristotle or by a pupil; i.e. as to the sense in which it is “Aristotelian.” The argument on the two sides may be summarized as follows:—

Against.—(i.) The occurrence of non-Aristotelian words and phrases and the absence of turns of expression characteristic of the undisputed writings of Aristotle. (ii.) The occurrence of statements contradictory of views found in thePolitics; e.g. c. 4 (Constitution of Draco) compared withPol.1274 b 15 (Δράκοντος νόμοι μέν εἰσι, πολιτείᾳ δ᾽ ὑπαρχούσῃ τοὺς νόμους ἔθηκεν); c. 8. 1 (the archons appointed by lot out of selected candidates) compared withPol.1274 a 17, and 1281 b 31 (the archons elected by thedemos); c. 17. 1 (total length of Peisistratus’ reign, 19 years) compared withPol.1315 b 32 (total length, 17 years); c. 21. 6 (Cleisthenes left the clan and phratries unaltered) compared withPol.1319 b 20 (Cleisthenes increased the number of the phratries); c. 21. 2 and 4 compared withPol.1275 b 37 (different views as to the class admitted to citizenship by Cleisthenes). It will be observed that the instances quoted relate to the most famous names in the early history of Athens, viz. Draco, Solon, Peisistratus and Cleisthenes. (iii.) Arguments drawn from the style, composition and general character of the work, which are alleged to be unworthy of the author of the undoubtedly genuine writings. There is no sense of proportion (contrast the space devoted to Peisistratus and his sons, or to the Four Hundred and the Thirty, with the inadequate treatment of the period between the Persian and Peloponnesian Wars); there is a lack of historical insight and an uncritical acceptance of erroneous views; and the anecdotic element is unduly prominent. These considerations led several of the earlier critics to deny the Aristotelian authorship, e.g. the editors of the Dutch edition of the text, van Herwerden and van Leeuwen; Rühl, Cauer and Schvarcz in Germany; H. Richards and others in England.

For.—(i.) The consensus of antiquity. Every ancient writer who mentions theConstitutionattributes it to Aristotle, while no writer is known to have questioned its genuineness. (ii.) The coincidence of the date assigned to its composition on internal grounds with the date of Aristotle’s second residence in Athens. (iii.) Parallelisms of thought or expression with passages in thePolitics; e.g. c. 16. 2 and 3 compared withPol.1318 b 14 and 1319 a 30; the general view of Solon’s legislation compared withPol.1296 b 1; c. 27. 3 compared withPol.1274 a 9. To argument (i.) against the authorship, it is replied that theConstitutionis an historical work, intended for popular use; differences in style and terminology from those of a philosophical treatise, such as thePolitics, are to be expected. To argument (ii.) it is replied that, as theConstitutionis a later work than thePolitics, a change of view upon particular points is not surprising. These considerations have led the great majority of writers upon the subject to attribute the work to Aristotle himself. On this side are found Kenyon and Sandys among English scholars, and in Germany, Wilamowitz, Blass, Gilbert, Bauer, Bruno Keil, Busolt, E. Meyer, and many others. On the whole, it can hardly be doubted that the view which is supported by so great a weight of authority is the correct one. The arguments advanced on the other side are not to be lightly set aside, but they can scarcely outweigh the combination of external and internal evidence in favour of the attribution to Aristotle. An attentive study of the parallel passages in thePoliticswill go a long way towards carrying conviction. It is true that a series such as theConstitutionsmight well be entrusted to pupils working under the direction of their master. It is also true, however, that theConstitution of Athensmust have been incomparably the most important of the series and the one that would be most naturally reserved for the master’s hand. There are no traces in the treatise either of variety of authorship or of incompleteness, though there are evidences of interpolation.

Contents.—The treatise consists of two parts, one historical, and the other descriptive. The first forty-one chapters compose the former part, the remainder of the work the latter. The first part comprised an account of the original constitution of Athens, and of the eleven changes through which it successively passed (see c. 41). The papyrus, however, is imperfect at the beginning (the manuscript from which it was copied appears to have been similarly defective), the text commencing in the middle of a sentence which relates to the trial and banishment of the Alcmeonidae for their part in the affair of Cylon. The missing chapters must have contained a sketch of the original constitution, and of the changes introduced in the time of Ion and Theseus.

The following is an abstract of Part I. in its present form. Chapters 2, 3, description of the constitution before the time of Draco. 4, Draco’s constitution. 5-12, reforms of Solon. 13, party feuds after the legislation of Solon. 14-19, the rule of Peisistratus and his sons. 20, 21, the reforms of Cleisthenes. 22, changes introduced between Cleisthenes and the invasion of Xerxes. 23, 24, the supremacy of the Areopagus, 479-461 B.C. 25, its overthrow by Ephialtes. 26, 27, changes introduced in the time of Pericles. 28, the rise of the demagogues. 29-33, the revolution of the Four Hundred. 34-40, the government of the Thirty. 41, list of the successive changes in the constitution. It may be noted that the reforms of Solon, the tyranny of Peisistratus and his sons, and the revolutions of the Four Hundred and the Thirty, together occupy considerably more than two-thirds of Part I.Part II. describes the constitution as it existed at the period of the composition of the treatise (329-322 B.C.). It begins with an account of the conditions of citizenship and of the training of theephebi(citizens between the ages of 18 and 20). In chapters 43-49 the functions of the Council (βουλή) and of the officials who act in concert with it are described. 50-60 deal with the officials who are appointed by lot, of whom the most important are the nine Archons, to whose functions five chapters (55-59) are devoted. The military officers, who come under the head of elective officials, form the subject of c. 61. With c. 63 begins the section on the Law-courts, which occupied the remainder of theConstitution. This portion, with the exception of c. 63, is fragmentary in character, owing to the mutilated condition of the fourth roll of the papyrus on which it was written. It will thus be seen that the subjects which receive fullest treatment in Part II. are the Council, the Archons and the Law-courts. The Ecclesia, on the other hand, is dealt with very briefly, in connexion with theprytaneisandproedri(cc. 43, 44).

Part II. describes the constitution as it existed at the period of the composition of the treatise (329-322 B.C.). It begins with an account of the conditions of citizenship and of the training of theephebi(citizens between the ages of 18 and 20). In chapters 43-49 the functions of the Council (βουλή) and of the officials who act in concert with it are described. 50-60 deal with the officials who are appointed by lot, of whom the most important are the nine Archons, to whose functions five chapters (55-59) are devoted. The military officers, who come under the head of elective officials, form the subject of c. 61. With c. 63 begins the section on the Law-courts, which occupied the remainder of theConstitution. This portion, with the exception of c. 63, is fragmentary in character, owing to the mutilated condition of the fourth roll of the papyrus on which it was written. It will thus be seen that the subjects which receive fullest treatment in Part II. are the Council, the Archons and the Law-courts. The Ecclesia, on the other hand, is dealt with very briefly, in connexion with theprytaneisandproedri(cc. 43, 44).

Sources.—The labours of several workers in this field, notably Bruno Keil and Wilamowitz, have rendered it comparatively easy to form a general estimate of Aristotle’s indebtedness to previous writers, although problems of great difficulty are encountered as soon as it is attempted to determine the precise sources from which the historical part of the work is derived. Among these sources are unquestionably Herodotus (for the tyranny of Peisistratus, and for the struggle between Cleisthenes and Isagoras), Thucydides (for the episode of Harmodius and Aristogeiton, and for the Four Hundred), Xenophon (for the Thirty), and the poems of Solon. There is now among critics a general consensus in favour of the view that the most important of his sources was theAtthisof Androtion, a work published in all probability only a few years earlier than theConstitution; in any case, after the year 346. From it are derived not only the passages which are annalistic in character and read like excerpts from a chronicle (e.g. c. 13. 1, 2; c. 22; c. 26. 2, 3), but also most of the matter common to theConstitutionand to Plutarch’sSolon. The coincidences with Plutarch, which are often verbal, and extend to about 50 lines out of 170 in cc. 5-11 of theConstitution, can best be explained on the hypothesis that Hermippus, the writer followed by Plutarch, used the same source as Aristotle, viz. theAtthisof Androtion. Androtion is probably closely followed in the account of the pre-Draconian constitution, and to him appear to be due the explanation of local names (e.g.χωρίον ἀτελές), or proverbial expressions (e.g.τὸ μὴ φυλοκρινεῖν), as well as the account of “Strategems” such as that of Themistocles against the Areopagus (c. 25) or that employed by Peisistratus in order to disarm the people (c. 15. 4). Whether the anecdotes, which are a conspicuous feature in theConstitution, should be referred to the same source is more open to doubt. It is also generally agreed that among the sources was a work, written towards the end of the 5th century B.C., by an author of oligarchical sympathies, with the object of defaming the character and policy of the heroes of the democracy. This source can be traced in passages such as c. 6. 2 (Solon turning the Seisachtheia to the profit of himself and his friends), 9. 2 (obscurity of Solon’s laws intentional, cf. c. 35. 2),27. 4 (Pericles’ motive for the introduction of the dicasts’ pay). But while the object (οἱ βουλόμενοι βλασφημεῖν, c. 6) and the date of this oligarchical pamphlet (for the date cf. Plutarch’sSolon, c. 15οἰ περἱ Κόνωνα καὶ Κλεινίαν καὶ Ίππόνικον, which points to a time when Conon, Alcibiades and Callias were prominent in public life) are fairly certain, the authorship is quite uncertain, as is also its relationship to another source of importance, viz. that from which are derived the accounts of the Four Hundred and the Thirty. The view taken of the character and course of these revolutions betrays a strong bias in favour of Theramenes, whose ideal is alleged to have been theπάτριος πολιτεία. It has been maintained, on the one hand, that this last source (the authority followed in the accounts of the Four Hundred and the Thirty) is identical with the oligarchical pamphlet, and, on the other, that it is none other than theAtthisof Androtion. The former hypothesis is improbable. In favour of the latter two arguments may be adduced. In the first place, Androtion’s father, Andron, was one of the Four Hundred, and took Theramenes’ side. Secondly, the precise marks of time, which are characteristic of theAtthis, are conspicuous in these chapters. In view, however, of the fact that Androtion in his political career showed himself not only a democrat, but a democrat of the extreme school, the hypothesis must be pronounced untenable.

Value.—It is by no means easy to convey a just impression of the value of Aristotle’s work as an authority for the constitutional history of Athens. In all that relates to the practice of his own day Aristotle’s authority is final. There can be no question, therefore, as to the importance, or the trustworthy character, of the Second Part. But even here a caution is necessary. It must be remembered that its authority is final for the 4th century only, and that we are not justified in arguing from the practice of the 4th century to that of the 5th, unless corroborative evidence is available. In the First Part, however, where he is treating of the institutions and practice of a past age, Aristotle’s authority is very far from being final. An analysis of this part of the work discloses his dependence, in a remarkable degree, upon his sources. Occasionally he compares, criticizes or combines; as a rule he adheres closely to the writer whom he is using. There is no evidence, either of independent inquiry, or of the utilization of other sources than literary ones. Where “original documents” are quoted, or referred to, as e.g. in the history of the Four Hundred, or of the Thirty, it is probable that he derived them from a previous writer. For the authority of Aristotle we must substitute, therefore, the authority of his sources; i.e. the value of any particular statement will vary with the character of the source from which it comes. For the history of the 5th century the passages which come from Androtion’sAtthiscarry with them a high degree of authority. It by no means follows, however, that a statement relating to earlier times is to be accepted simply because it is derived from the same source. And in passages which are derived from other sources than theAtthisa much lower degree of authority can be claimed, even for statements relating to the 5th century. The supremacy of the Areopagus after the Persian Wars, the policy attributed to Aristides (c. 24), and the association of Themistocles with Ephialtes, are cases in point. Nor must the reader expect to find in theConstitutiona great work, in any sense of the term. The style, it is true, is simple and clear, and the writer’s criticisms are sensible. But the reader will look in vain for evidence of the philosophic insight which makes thePolitics, even at the present day, the best text-book of political philosophy. It is perhaps hardly too much to say that there is not a single great idea in the whole work. He will look in vain, too, for any consistent view of the history of the constitution as a whole, or for any adequate account of its development. He will find occasional misunderstandings of measures, and confusions of thought. There are appreciations which it is difficult to accept, and inaccuracies which it is difficult to pardon. There are contradictions which the author has overlooked, and there are omissions which are unaccountable. Yet, in spite of such defects, the importance of theConstitutioncan hardly be exaggerated. Its recovery has rendered obsolete any history of the Athenian constitution that was written before the year 1891. Before this date our knowledge was largely derived from the statements of scholiasts and lexicographers which had not seldom been misunderstood. The recovery of theConstitutionputs us for the first time in possession of the evidence. To appreciate the difference that has been made by its recovery, it is only necessary to compare what we now know of the reforms of Cleisthenes with what we formerly knew. It is much of it evidence that needs a careful process of weighing and sifting before it can be safely used; but it is, as a rule, the best, or the only evidence. The First Part may be less trustworthy than the Second; it is not less indispensable to the student of constitutional history.

Bibliography.—A conspectus of the literature of theConstitutioncomplete down to the end of 1892 is given in Sandys p. lxvii., and, though less complete, down to the beginning of 1895 in Busolt,Griechische Geschichte, 2nd ed. vol. ii. p. 15. In the present article only the most important editions, works or articles are mentioned.Editions of the text:Editio princeps, ed. by F. G. Kenyon, 30th January 1891, with commentary. Autotype facsimile of the papyrus (1891).Aristotelisπολιτεία Άθηναίων, ed. G. Kaibel et U. von Wilamowitz-Moellendorff (Berlin, Weidmann, 1891).Aristotelis qui ferturΆθηναίων πολιτείαrecensuerunt H. van Herwerden et J. van Leeuwen (Leiden, 1891). Teubner text, ed. by F. Blass (Leipzig, 1892). Edition of the text without commentary by Kenyon.Most of these have passed through several editions. The fullest commentary is that contained in the edition of the text by J. E. Sandys (London, 1893). The best translations are those of Kenyon, in English, and of Kaibel and Kiessling, in German.Works dealing with the subject: Bruno Keil,Die Solonische Verfassung nach Aristoteles(Berlin, 1892); G. Gilbert,Constitutional Antiquities of Sparta and Athens(Eng. trans., 1895); U. von Wilamowitz-Moellendorff,Aristoteles und Athen(2 vols., Berlin, 1893), a work of great importance, in spite of many unsound conclusions; E. Meyer,Forschungen, vol. ii. pp. 406 ff. (the section dealing with the Four Hundred is especially valuable). Articles: R. W. Macan,Journal of Hellenic Studies(April 1891); R. Nissen,Rheinisches Museum(1892), p. 161; G. Busolt,Hermes(1898), pp. 71 ff.; O. Seeck, “Quellenstudien zu des Aristoteles’ Verfassungsgeschichte Athens,” in Lehmann’sBeiträge zur alten Geschichte, vol. iv. pp. 164 and 270.

Editions of the text:Editio princeps, ed. by F. G. Kenyon, 30th January 1891, with commentary. Autotype facsimile of the papyrus (1891).Aristotelisπολιτεία Άθηναίων, ed. G. Kaibel et U. von Wilamowitz-Moellendorff (Berlin, Weidmann, 1891).Aristotelis qui ferturΆθηναίων πολιτείαrecensuerunt H. van Herwerden et J. van Leeuwen (Leiden, 1891). Teubner text, ed. by F. Blass (Leipzig, 1892). Edition of the text without commentary by Kenyon.

Most of these have passed through several editions. The fullest commentary is that contained in the edition of the text by J. E. Sandys (London, 1893). The best translations are those of Kenyon, in English, and of Kaibel and Kiessling, in German.

Works dealing with the subject: Bruno Keil,Die Solonische Verfassung nach Aristoteles(Berlin, 1892); G. Gilbert,Constitutional Antiquities of Sparta and Athens(Eng. trans., 1895); U. von Wilamowitz-Moellendorff,Aristoteles und Athen(2 vols., Berlin, 1893), a work of great importance, in spite of many unsound conclusions; E. Meyer,Forschungen, vol. ii. pp. 406 ff. (the section dealing with the Four Hundred is especially valuable). Articles: R. W. Macan,Journal of Hellenic Studies(April 1891); R. Nissen,Rheinisches Museum(1892), p. 161; G. Busolt,Hermes(1898), pp. 71 ff.; O. Seeck, “Quellenstudien zu des Aristoteles’ Verfassungsgeschichte Athens,” in Lehmann’sBeiträge zur alten Geschichte, vol. iv. pp. 164 and 270.

(E. M. W.)

CONSUETUDINARY(Med. Lat.consuetudinarius, fromconsuetudo, custom), customary, a term used especially of law based on custom as opposed to statutory or written law. As a noun “consuetudinary” (Lat.consuetudinarius, sc.liber) is the name given to a ritual book containing the forms and ceremonies used in the services of a particular monastery, cathedral or religious order.

CONSUL(in Gr. generallyὓπατος, a shortened form ofστρατηγὸς ὓπατος, i.e.praetor maximus), the title borne by the two highest of the ordinary magistrates of the whole Roman community during the republic. In the imperial period these magistrates had ceased practically to be the heads of the state, but their technical position remained unaltered. (For the modern commercial office of consul see the separate article below.)

The consulship arose with the fall of the ancient monarchy (see furtherRome:History, II. “The Republic”). The Roman reverence for the abstract conception of the magistracy, as expressed in the imperium and the auspicia, led to the preservation of the regal power weakened only by external limitations. The two new officials who replaced the king bore the titles of leaders (praetores) and of judges (judices; cf. Cicero,De legibus, iii. 3. 8, “regio imperio duo sunto iique a praeeundo judicando ... praetores judices ... appellamino”). But the new fact of colleagueship caused a third title to prevail, that ofconsulesor “partners,” a word probably derived fromconsalioon the analogy ofpraesulandexul(Mommsen,Staatsrecht, ii. p. 77, n. 3). This first example of the collegiate principle assumed the form that soon became familiar in the Roman commonwealth. Each of the pair of magistrates could act up to the full powers of the imperium; but the dissent of his colleague rendered his decision or his action null and void. At the same time the principle of a merely annual tenure of office was insisted on. The two magistrates at the close of their year of office were bound to transmit their power to successors; and these successors whom they nominated were obliged to seek the suffrages of thepeople. The only body known to us as electing the consuls during the republican period was thecomitia centuriata(seeComitia). The consulate was originally confined to patricians. During the struggle for higher office that was waged between the orders the office was suspended on fifty-one occasions between the years 444 and 367 B.C. and replaced by the military tribunate with consular power, to which plebeians were eligible. The struggle was brought to an end by the Licinio-Sextian laws of 367 B.C., which enacted that one consul must be a plebeian (seePatricians).

Most of the internal history of Rome down to the beginning of the third century B.C. consists in a series of attacks, whether intentional or accidental, on the power of the executive. As the consuls are the sole representatives of higher executive authority in early times, this history is one of a progressive decline in the originally wide and arbitrary powers of the office. Their right of summary criminal jurisdiction was weakened by the successive laws of appeal (provocatio); their capacity for interpreting the civil law at their pleasure by the publication of the Twelve Tables and the Forms of Action. The growth of the tribunate of the plebs hampered their activity both as legislators and as judges. They surrendered the duties of registration to the censors in 443 B.C., and the rights of civil jurisdiction and control over the market and police to the praetor and the curule aediles in 367 B.C.

The result of these limitations and of this specialization of functions in the community was to leave the consuls with less specific duties at home than any magistrates in the state. But the absence of specific functions may be of itself a sign of a general duty of supervision. The consuls were in a very real sense the heads of the state. Polybius describes them as controlling the whole administration (Polyb. vi. 12πασῶν εἰσι κύριοι τῶν δημοσίων πράξεων). This control they exercised in concert with the senate, whose chief servants they were. It was they who were the most regular consultants of this council, who formulated its decrees as edicts, and who brought before the people legislative measures which the senate had approved. It was they also who represented the state to the outer world and introduced foreign envoys to the senate. The symbols of their presidency were manifold. It was marked by the twelvelictors(q.v.), a number permitted to no other ordinary magistrate, by the fact that the first act of newly-admitted consuls was to take the auspices, their second to summon the senate, and by the use of their names for dating the year. The consulate was, indeed, as Cicero expresses it, the culminating point in an official career (“Honorum populi finis est consulatus,” Cic.Pro Planco, 25. 60).

In the domestic sphere the consuls retained certain powers of jurisdiction. This jurisdiction was either (i.) administrative or (ii.) criminal. (i.) Their administrative jurisdiction was sometimes concerned with financial matters such as pecuniary claims made by the state and individuals against one another. They acted in these matters in the periods during which the censors were not in office. We also find them adjudicating in disputes about property between the cities of Italy, (ii.) Their criminal jurisdiction was of three kinds. In the first place it was their duty, before the development of the standing commissions which originated in the middle of the 2nd century B.C., to set in motion the criminal law against offenders for the cognizance of ordinary, as opposed to political, crimes. The reference of such cases to the assembly of the people was effected through their quaestors (seeQuaestor). Secondly, when the people and senate, or the senate alone, appointed a special commission (seeSenate), the commissioner named was often a consul. Thirdly, we find the consul conducting a criminal inquiry raised by a point of international law. It is possible that in this case his advising body (consilium) was composed of thefetiales(seeHerald, ad fin.). (Cicero,De republica, iii. 18. 28; Mommsen,Staatsrecht, ii. p. 112, n. 3).

During the greater part of the republic the consuls were recognized as the heads of the administration abroad as well as at home. It thus became necessary that departments of administration (provinciae) should be determined and assigned. The method of assignment varied. The least usual device was for one consul to take the field at the head of an army, while the other remained at home to transact the civil business of state. More often foreign wars demanded the attention of both consuls. In this case the regular army of four legions was usually divided between them. When it was necessary that both armies should co-operate, the principle of rotation was adopted, each consul having the command for a single day—a practice which may be illustrated by the events preceding the battle of Cannae (Polybius iii. 110; Livy xxii. 41). During the great period of conquest from 264 to 146 B.C. Italy was generally one of the consular “provinces,” some foreign country the other; and when at the close of this period Italy was at peace, this distinction approximated to one between civil and military command. The consuls settled their departments amongst themselves by agreement or by lot (comparatio,sortitio), the power of declaring what should be the consularprovinciaewas usurped by the senate, (seeSenate), and alex Semproniapassed by C. Gracchus, probably in 122 B.C., ordained that the two consular provinces should be declared before the election of the consuls. At this time the consuls entered office on the 1st of January (a practice which commenced in 153 B.C.), and their military command began on the 1st of March. They could hold this military command until they were superseded in the following March, and thus their tenure of power was practically raised to fourteen months. But meanwhile the home officials invested with the imperium had proved insufficient for the military needs of the empire, and the system of prolonging the command (prorogatio imperii) had been growing up (seeProvince). The consul whose command had been prolonged now served abroad as proconsul. It is probable that Sulla in his legislation of 81 B.C. did something to stereotype this system. Certainly the government by pro-magistrates becomes the rule after this period (cf. Cicero,De natura deorum, ii. 3. 9;De divinatione, ii. 36. 76, 77), although there are several instances of consuls assuming the active command of provinces between the years 74 and 55 B.C. (Mommsen,Rechtsfrage, p. 30), and Cicero declares that the consul has a right to approach every province (“consules, quibus more majorum concessum est vel omnes adire provincias,” Cicero,Ad Atticum, viii. 15. 3). Certainly in theory the provinces were still regarded as “consular,” not “proconsular,” and were technically, although not practically, held from the 1st of March of the consul’s tenure of office at Rome (cf. Cicero,De provinciis consularibus, 15. 37; Mommsen,Rechtsfrage,passim). It was not until the lex Pompeia of 52 B.C. (Dio Cassius xl. 56) had established a five years’ interval between home and foreign command that the theory of theprorogatio imperiivanished and the proconsulate became a separate office.

Since the theory of the persistence of the republican constitution was of the essence of the Principate, the consuls necessarily lost little of their outward position and dignity under the rule of the Caesars. The consulship was the only office in which a citizen, other than a member of the imperial house, might have the princeps as a colleague, and in the interval between the death or deposition of one princeps and the appointment of another the consuls resumed their normal position as the heads of the state (cf. Herodian ii. 12). As the presidents of the senate, who after A.D. 14 elected them to their office, they were the chief personal representatives of those elements of sovereignty that were supposed to attach to that body, and they directed that high criminal jurisdiction which the senate of this period assumed (seeSenate). A restored power of jurisdiction is indeed one of the features of their position during this time, and it is probable that the civil appeals which came to the senate were delegated to the consuls. They also acted for a time as delegates to the princeps in matters of Chancery jurisdiction such as trusts and guardianship (Mommsen,Staatsrecht, ii. p. 103). The consulship was also a preparation for certain high commands, such as the government of certain public and imperial provinces (seeProvince) and the praefecture of the city. It was probably due to the fact that the consulship was such a prize, and perhaps also to the expense imposed on the office by its association with thecelebration of games (Dio Cassius lvi. 46, lix. 20) that the tenure was progressively shortened. In the early principate the consuls hold office for six months, later for four to two months (Mommsen,Staatsrecht, ii. pp. 84-87). The consuls appointed for the 1st of January were calledordinarii, the otherssuffecti; and the whole year was dated by the names of the former.

This distinction continued in the Empire that was founded by Diocletian and Constantine. Theordinariiwere nominated by the emperor, thesuffectiwere nominated by the senate, and their appointment was ratified by the emperor. The consulship was still the greatest dignity which the Empire had to bestow; and the pomp and ceremony of the office increased in proportion to the decline in its actual power. The entry of the consuls on office was celebrated by a great procession, by games given to the people, by a distribution of gifts, such as the ivory diptychs, a long series of which has been preserved. But the senate, over which they presided until the time of Justinian, was little more than the municipal council of the city of Rome; and the justice which they meted out had dwindled down to the formal and uncontested acts of manumission and the granting of guardians. Sometimes there was a consul of the West at Rome and a consul of the East at Constantinople; at other times both consuls might be found in either capital. The last consul born in a private station was Basilius in the East in A.D. 541. But the emperors continued to bear the title for some time longer.

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