Part 13

Where, however, as is the case in the Musulman and perhaps also in the Buddhist countries belonging to the former class, a legal system which, though imperfect, especially on the commercial side, has been carefully worked out in some directions, holds the field and rests upon religion, the question is less simple. The experience of the English in India suggests that European law will occupy the non-religious parts of the native systems, and will tend by degrees to encroach upon and permeate even the religious parts, though so long as Islam (or Brahmanism) maintains its sway the legal customs and rules embedded in religion will survive. No wise ruler would seek to efface them so far as they are neither cruel nor immoral. It is only these ancient religions—Hinduism, Buddhism, and especially Islam—that can or will resist, though perhaps only for a time, and certainly only partially, the rising tide of European law.

X. PRESENT POSITION OF ROMAN AND ENGLISH LAW IN THE WORLD.

European law means, as we have seen, either Roman law or English law, so the last question is: Will either, and if so which, of these great rival systems prevail over the other?

They are not unequally matched. The Roman jurists, if we include Russian as a sort of modified Roman law, influence at present a larger part of the world’s population, but Bracton and Coke and Mansfield might rejoice to perceive that the doctrines which they expounded are being diffused even more swiftly, with the swift diffusion of the English tongue, over the globe. It is an interesting question, this competitive advance of legal systems, and one which would have engaged the attention of historians and geographers, were not law a subject which lies so much outside the thoughts of the lay world that few care to study its historical bearings. It furnishes a remarkable instance of the tendency of strong types to supplant and extinguish weak ones in the domain of social development. The world is, or will shortly be, practically divided between two sets of legal conceptions of rules, and two only. The elder had its birth in a small Italian city, and though it has undergone endless changes and now appears in a variety of forms, it retains its distinctive character, and all these forms still show an underlying unity. The younger has sprung from the union of the rude customs of a group of Low German tribes with rules worked out by the subtle, acute and eminently disputatious intellect of the Gallicized Norsemen who came to England in the eleventh century. It has been much affected by the elder system, yet it has retained its distinctive features and spirit, a spirit specially contrasted with that of the imperial law in everything that pertains to the rights of the individual and the means of asserting them. And it has communicated something of this spirit to the more advanced forms of the Roman law in constitutional countries.

At this moment the law whose foundations were laid in the Roman Forum commands a wider area of the earth’s surface, and determines the relations of a larger mass of mankind. But that which looks back to Westminster Hall sees its subjects increase more rapidly, through the growth of the United States and the British Colonies, and has a prospect of ultimately overspreading India also. Neither is likely to overpower or absorb the other. But it is possible that they may draw nearer, and that out of them there may be developed, in the course of ages, a system of rules of private law which shall be practically identical as regards contracts and property and civil wrongs, possibly as regards offences also. Already the commercial law of all civilized countries is in substance the same everywhere, that is to say, it guarantees rights and provides remedies which afford equivalent securities to men in their dealings with one another and bring them to the same goal by slightly different paths.

The more any department of law lies within the domain of economic interest, the more do the rules that belong to it tend to become the same in all countries, for in the domain of economic interest Reason and Science have full play. But the more the element of human emotion enters any department of law, as for instance that which deals with the relations of husband and wife, or of parent and child, or that which defines the freedom of the individual as against the State, the greater becomes the probability that existing divergences between the laws of different countries may in that department continue, or even that new divergences may appear.

Still, on the whole, the progress of the world is towards uniformity in law, and towards a more evident uniformity than is discoverable either in the sphere of religious beliefs or in that of political institutions.

III

FLEXIBLE AND RIGID CONSTITUTIONS[56]

I. THE CONSTITUTIONS OF ROME AND ENGLAND.

Rome and England are the two States whose constitutions have had the greatest interest for the world, and have exerted the greatest influence upon it. Out of the republic on the Tiber, a city with a rural territory round it no bigger than Surrey or Rhode Island, grew a World Empire, and the framework of that Empire retained till its fall traces of the institutions under which the little republic, circled and threatened by a crowd of hostile States, had risen to show herself the strongest of them all. In England a monarchy, first tribal and then feudal, developed from very small beginnings into a second World Empire of a wholly different type, while at the same time the ancient form of government, through a series of struggles and efforts, guided by an only half-conscious purpose, slowly developed itself into a system monarchical only in name. That system became in the eighteenth century the starting-point for all modern political philosophy[57], and in the nineteenth the model for nearly all the schemes of free representative polity that have arisen in the Old World as well as for many in the newer countries.

Footnote 56:

This Essay was delivered, in the form of two lectures, in 1884, and the names Flexible and Rigid were then suggested for the two types of Constitution here described. It has been enlarged and revised and brought up to date, but the substance remains the same.

Footnote 57:

The interest which the English Constitution excited in Montesquieu may be compared with that which the Roman excited in Polybius.

It is, however, not merely the range of their influence, nor merely the fact that, as the Roman Constitution worked upon the whole of the ancient, so the English Constitution has worked upon the whole of the modern world, that makes these two systems deserve constant study. Constitutions are the expression of national character, as they in their turn mould the character of those who use them; and the same causes which made both peoples great have made their political institutions also strong and rich, specially full of instruction for all nations in all times. There were in the fifth century B.C. hundreds of commonwealths in the Mediterranean countries with republican frames of government, many of which bore a general resemblance to that of Rome. There were in the fourteenth century A.D. several monarchies in Europe similar in their constitutional outlines to that of England, and with what seemed an equal promise of rich and free development. Of the former, Rome alone survived, destroying or absorbing all the rest. Of the latter, that of England is the only one which had at the end of the eighteenth century grown into a system at once broad-based and strong, a system which secured both public order and the freedom of the individual citizen, and in which the people were able to make their voice heard and to influence the march of national policy. All the others had either degenerated into despotisms or remained comparatively crude and undeveloped. Thus when, after the flood of Napoleonic conquest had subsided, the peoples of the European continent began to essay the establishment of free constitutions, they found in that of England the model fittest to be followed, and sought to adapt its principles to their own several conditions.

England, moreover, has been the parent of free governments in a further sense. Though she has not, like Rome, stretched her system of government till it embraced the world, she has reproduced it in those parts of her transoceanic dominions where her children have been able to form self-governing communities. Reduced copies of the British Constitution have been created in seventeen self-governing colonies. Seven of these have in North America been united in a Federation whose frame of government is built on British lines. Six others, in Australia, have been similarly grouped in another Federal Government of a not less distinctively British type. And an independent Republic, far vaster in population than all these colonies put together, has, less closely, but yet in the main and essential points, reproduced the principles, although not the form, of the institutions of the motherland. It is, therefore, to Rome and to England that the eye of the student of political constitutions will most often turn. They represent the most remarkable developments of ordered political life for the ancient and for the modern world respectively. And whoever attempts to classify Constitutions and to note the distinctive features of the principal types they present, will find that it is from Rome and from England that illustrations can most frequently and most profitably be drawn[58].

Footnote 58:

As to the countries or peoples in which Constitutions in the proper sense can be said to exist, see Note at the end of this Essay.

II. THE TRADITIONAL CLASSIFICATION OF CONSTITUTIONS.

The old-fashioned classification of Constitutions which has come down to our own times is based on the distinction of Written and Unwritten Law, itself an ill-expressed and rather confusing distinction, because _ius non scriptum_ is intended to denote customs: and when customs have been recorded in writing, they can hardly continue to be called unwritten. This classification places in the category of Written Constitutions those which are expressly set forth in a specially important document or documents, and in the category of Unwritten those which began, not in formal agreements, but in usage, a usage which lives in men’s recollections, and which, even when it has been to a large extent defined, and secured against error, by being committed to writing, is recorded as embodying that which men have observed, and are deemed likely to continue to observe, not as that to which they have bound themselves formally by a law.

These terms are, however, not happy terms, although the distinction they aim at expressing is a real distinction. The line which they attempt to draw between the two classes of Constitutions is not a clear or sharp line, because in all Written Constitutions there is and must be, as we shall presently see, an element of unwritten usage, while in the so-called Unwritten ones the tendency to treat the written record of custom or precedent as practically binding is strong, and makes that record almost equivalent to a formally enacted law, not to add that Unwritten Constitutions, though they began in custom, always include some statutes. Moreover, these names, while they dwell on a superficial distinction, ignore a more essential one to be presently mentioned. Let us therefore try to find a better classification.

If we survey Constitutions generally, in the past as well as in the present, we find them conforming to one or other of two leading types. Some are natural growths, unsymmetrical both in their form and in their contents. They consist of a variety of specific enactments or agreements of different dates, possibly proceeding from different sources, intermixed with customary rules which rest only on tradition or precedent, but are deemed of practically equal authority. Other Constitutions are works of conscious art, that is to say, they are the result of a deliberate effort on the part of the State to lay down once for all a body of coherent provisions under which its government shall be established and conducted. Such Constitutions are usually comprised in one instrument—possibly, however, in more than one—an instrument solemnly enacted whose form and title distinguish it from ordinary laws. We may provisionally call these two types the Old and the New, because all ancient and mediaeval as well as some few recent Constitutions are of the former kind, while most modern ones belong to the latter. The distinction corresponds roughly to that drawn, in England and America, between common law and statute law, or to the Roman distinction between _ius_ and _lex_, so that we might describe the types as Common Law Constitutions and Statutory Constitutions respectively. Yet the line of demarcation is not always a plain one. In countries with constitutions of the Common Law type, statutes are frequently passed, declaring or modifying or abolishing antecedent usage, which supersede and replace parts, possibly large parts, of the common law maxims, so that at last most of the leading rules can be found in a few great statutes. On the other hand, the Statutory Constitutions become developed by interpretation and fringed with decisions and enlarged or warped by custom, so that after a time the letter of their text no longer conveys their full effect. It is, therefore, desirable to have some more definite and characteristic test or criterion whereby to mark off the two types which have been just described in general terms.

III. A PROPOSED NEW CLASSIFICATION OF CONSTITUTIONS.

Such a criterion may be found in the relation which each Constitution bears to the ordinary laws of the State, and to the ordinary authority which enacts those laws. Some constitutions, including all that belong to the older or Common Law type, are on the level of the other laws of the country, whether those laws exist in the form of statutes only, or also in the form of recorded decisions defining and confirming a custom. Such constitutions proceed from the same authorities which make the ordinary laws; and they are promulgated or repealed in the same way as ordinary laws. In such cases the term ‘Constitution’ denotes nothing more than such and so many of the statutes and customs of the country as determine the form and arrangements of its political system. And (as will presently appear) it is often difficult to say of any particular law whether it is or is not a part of the political Constitution.

Other constitutions, most of them belonging to the newer or Statutory class, stand above the other laws of the country which they regulate. The instrument (or instruments) in which such a constitution is embodied proceeds from a source different from that whence spring the other laws, is repealable in a different way, exerts a superior force. It is enacted, not by the ordinary legislative authority, but by some higher or specially empowered person or body. If it is susceptible of change, it can be changed only by that authority or by that special person or body. When any of its provisions conflict with a provision of the ordinary law, it prevails, and the ordinary law must give way. These are features, partly political, partly legal, which mark off the two types of Constitution from one another; and although it will appear that in some few cases the question to which type the Constitution of a particular State belongs may be a nice one, still the general legal criteria to be applied are clear and definite. In a State possessing a constitution of the former—the older—type, all laws (excluding of course by-laws, municipal regulations, and so forth) are of the same rank and exert the same force. There is, moreover, only one legislative authority competent to pass laws in all cases and for all purposes. But in a State whose Constitution belongs to the latter—the newer—type, there are two kinds of laws, one kind higher than the other, and more universally potent; and there are likewise two legislative authorities, one superior and capable of legislating for all purposes whatsoever, the other inferior and capable of legislating only so far as the superior authority has given it the right and function to do so.

The difference of these two types is best explained by illustrative instances. At Rome in the second century B.C. there was but one kind of enactment. All _leges_ passed by the general assembly (whether _comitia centuriata_ or _comitia tributa_) were of the same generality and the same force. There was but one legislative authority, the people voting in the _comitia_. So in England, during the last few centuries, there has been but one direct legislative authority, viz. Parliament, which is supreme, and all whose acts bind every citizen everywhere. Accordingly in England the laws called constitutional differ only in respect of their subject-matter from other laws, but are of no higher order. Each of such laws, though we call them in their totality ‘the British Constitution,’ is alterable by the ordinary legislative authority at any moment, just like other laws. Between an Act for making a railway from Manchester to Liverpool and an Act extending the electoral suffrage to all householders or disestablishing the Protestant Episcopal Church in Ireland there is no difference whatever in point of form or in degree of authority. In Switzerland, however, and in France the case is different. The Constitution of the Swiss Confederation is a document which was enacted by the people, and any amendment of which needs to be similarly enacted by them, whereas ordinary laws are passed by the Federal legislature of two Houses[59]. The present Constitution of the French Republic was enacted by the two Chambers sitting together as a Constituent Assembly, and can be amended only by the Chambers sitting together in that capacity, after each Chamber has separately resolved that revision is needed, whereas ordinary laws are passed by the two Chambers sitting separately. Thus both in Switzerland and in France there is a distinction in the enacting authority, and therewith also a distinction in the quality and force of the laws enacted, the law which is called the Constitution being entirely superior to the other laws which are passed by the legislature in the ordinary every-day course of its action.

Footnote 59:

It is unnecessary for the present purpose to call attention to the complication introduced in Switzerland by the application of the Referendum plan to ordinary laws.

What in the case of each State of the latter or newer type may be the higher (and indeed supreme) authority which is alone competent to enact a Constitution depends upon the provisions of each particular system. It may be the whole people, voting by what is sometimes, though not very happily, called a plebiscite. It may be a body specially elected for the purpose, which dissolves when its work has been completed. It may be certain local bodies, each voting separately on the same instrument submitted to them. It may be, as in the case just mentioned of France, the ordinary legislature sitting in a peculiar way, or acting by a prescribed majority, or rendering several successive votes to the same effect at prescribed intervals of time. These are matters of detail. The essential point is that in States possessing Constitutions of the newer type that paramount or fundamental law which is called the Constitution takes rank above the ordinary laws, and cannot be changed by the ordinary legislative authority.

I have sought in many quarters for names, necessarily metaphorical names, suitable to describe these two types of Constitution. They might be called Moving and Stationary, because those of the older kind are virtually never at rest, but are always undergoing some sort of change, however slight, in the course of ordinary legislation, while those of the newer type abide fixed and stable in their place. Or they might be described, the former as Fluid, and the latter as Solid or Crystallized. When a man desires to change[60] the composition of a liquid, he pours in some other liquid or dissolves a solid in the liquid, and shakes the mixture. But he who wishes to alter the composition of a solid must first dissolve it or fuse it, and then, having got it into a liquid or gaseous state, must mix in or extract (as the case may be) the other substance. The analogy between these two processes and those whereby a Constitution of the older and one of the newer type are respectively changed might justify these names. But there is another and simpler metaphor, which, though not quite perfect, seems on the whole preferable. Constitutions of the older type may be called Flexible, because they have elasticity, because they can be bent and altered in form while retaining their main features. Constitutions of the newer kind cannot, because their lines are hard and fixed. They may therefore receive the name of Rigid Constitutions: and by these two names I propose that we shall call them for the purposes of this inquiry. If the characteristics of the two types have not been made sufficiently clear by what has been already said, they will probably become clear in the more detailed examination of them, to which we may now proceed.

Footnote 60:

_I.e._ to change mechanically, not necessarily chemically.

I begin with Flexible Constitutions, not only because they are more familiar to students of Roman history and to Englishmen, but also because they are anterior in date. They are indeed the only constitutions which the ancient world possessed, for although, in the absence of Aristotle’s famous treatise _On Politics_, we know comparatively little about most of the constitutions even of the more famous Greek cities (except Athens), and practically nothing about any others, save those of Rome and Carthage, there are reasons, to be given presently, why we may safely assume that all of them belonged to the Flexible type. But in the modern world they have become rare. Excluding despotically governed countries, such as Russia, Turkey, and Montenegro, there are now only three in Europe, those of the United Kingdom, of Hungary—an ancient and very interesting Constitution, presenting remarkable analogies to that of England—and of Italy, whose constitution, though originally set forth in one document, has been so changed by legislation as to seem now properly referable to the Flexible type. Elsewhere than in Europe, all Constitutions would appear to be Rigid[61].

Footnote 61:

Except that of the late South African Republic (Transvaal). The cases of the British self-governing colonies will be presently referred to.