Part 14

But a preliminary objection deserves to be first considered. Can we properly talk of a Constitution at all in States which, like Rome and England, draw no formal and technical distinction between laws of different kinds? Since there was at Rome and is in England but one legislative authority, and all its statutes are of equal force, how distinguish those which relate to the general frame of government from those which embody the minor details of administration? The great Reform Act of A.D. 1832, for instance—and the same remark applies to the parliamentary reform Acts of 1867 and 1884—was clearly a constitutional statute. But it contained minor provisions which no one could call fundamental, and some of which were soon changed by other statutes which would scarcely be described as constitutional. There are many statutes of which, as of the Municipal Reform Act of 1834 (and I may add as of the Local Government Acts of 1888 and 1894), it would be hard to say whether they are or are not constitutional statutes, and there are statutes which would not be termed constitutional (such as the Scottish Universities Act of 1852), which have in fact modified such a momentous constitutional document as the Act of Union with Scotland (5 Anne, c. 6, art. xxv).

Technically, therefore, we cannot draw a distinction between constitutional and other laws. There was in strictness no Roman Constitution. There is no British Constitution. That is to say, there are no laws which can be definitely marked off as Fundamental Laws, defining and distributing the powers of government, the mode of creating public authorities, the rights and immunities of the citizen. That which we call the Constitution of the Roman State, that which we now call the Constitution of the United Kingdom, is a mass of precedents, carried in men’s memories or recorded in writing, of dicta of lawyers or statesmen, of customs, usages, understandings and beliefs bearing upon the methods of government, together with a certain number of statutes, some of them containing matters of petty detail, others relating to private just as much as to public law, nearly all of them presupposing and mixed up with precedents and customs, and all of them covered with a parasitic growth of legal decisions and political habits, apart from which the statutes would be almost unworkable, or at any rate quite different in their working from what they really are. The most skilful classifier could not draw up a list that would bear criticism of Roman or of British statutes embodying the Constitution of either State: and even if such a list were prepared, the statutes so classified would fail to contain some cardinal doctrines and rules. Such a list, for instance, of British statutes would contain nothing about the Cabinet, and very little about the relations of the House of Commons to the House of Lords. On such subjects as the control of the House of Commons over foreign affairs, the obligation of the Crown to take, or the possible right of the Crown in certain cases to overrule, the advice of its ministers, no light would be thrown. Yet the statutes form the clearest and most manageable part of the materials which make up the British Constitution. Those other materials which have been referred to are by their very nature vague and indeterminate, unsusceptible of classification, and in many instances incapable of being set forth in definite rules[62]. A certain part of them is already, or is on the way to become, obsolete. Another part is matter of controversy between different schools of jurists or historians. The same thing was true of Rome, for at Rome it would seem that no statute defined the power of the consuls, nor their relation to the Senate, nor set limits to the quasi-legislative authority of that great magistrate the Praetor. So far from being clearly ascertained were the powers of the Senate, that in Cicero’s time it was matter of constitutional debate whether its decrees had or had not the full force of law[63]; and men took one view or the other according to their political proclivities, just as in England men at one time differed regarding the right of the House of Lords to deal with money bills.

Footnote 62:

This point has been brought out with admirable force in Mr. Dicey’s _Law of the Constitution_.

Footnote 63:

See as to this, Essay XIV, vol. ii. p. 304.

These facts are of course obvious enough to-day to every English lawyer, and indeed to those laymen who have some tincture of historical or legal knowledge. It is otherwise with the general public. To them the word Constitution seems to represent something definite and positive. Much of the current talk about the danger of altering the British Constitution[64] seems to spring from the notion that the name represents a concrete thing, an ascertainable and positive definite body of rules laid down in black and white. The Romans had no single word to convey what we mean by ‘Constitution.’ Even in the last days of the Republic Cicero had to use such phrases as _forma_, or _ratio_, or _genus rei publicae_, or _leges et instituta_; and what we call ‘constitutional law’ appears in the jurists of the Empire as _ius quod ad statum rei Romanae spectat_[65].

Footnote 64:

I have allowed these lines to remain, though they were more applicable in 1884 than they are in 1901, when so many changes have been effected that arguments about the danger of changing the Constitution are less frequently heard.

Footnote 65:

Ulpian in _Digest_, i. 1, 2.

The objection, however, which we have been considering, goes only to misconceptions that may arise from the word ‘Constitution,’ not to the use of the word itself, for some such word is indispensable. The thing exists, and there must be a name to describe it. A thing is not the less real because its limits cannot be sharply defined. A hill is a hill and a plain a plain, though you cannot fix the point where the hill subsides into the plain. The aggregate of the laws and customs through and under which the public life of a State goes on may fitly be called its Constitution; and even the still vaguer phrases, ‘Spirit of the Constitution,’ ‘Principles of the Constitution,’ may properly be used, since they too describe a general quality or tendency pervading the whole mass of laws and customs that rule a State which gives to this mass a character differing from that of the Constitution of any other State; just as each great nation has what we call a National Character, though this character can be more easily recognized than defined.

IV. THE ORIGIN OF FLEXIBLE CONSTITUTIONS.

Now let us return to consider the history and the attributes of Flexible Constitutions. We have seen that they are older than those of the Rigid type. It may be thought that this is so because they are more compatible with a rude condition of society, and because springing out of custom, always the first source of law, they are the simplest and most obvious form which regular political society can take. This is true, but does not fully explain the phenomena.

A Constitution properly so called is a frame of political society organized through and by law, that is to say, one in which law has established permanent institutions with recognized functions and definite rights. Now such forms of organized political society appear first in small communities, whether Urban, like the City States of Greece, or Rural, like those of early England or mediaeval Switzerland. Wherever in the earlier stages of civilization we find large communities, like Egypt, Assyria, Peru, Russia in the sixteenth century, we find that a tribal organization has passed into a despotism[66], apparently without passing through the intermediate stage of a more or less restricted monarchy. Now in a small area men usually organize themselves in a regular community by vesting legal authority in a mass meeting of the citizens. The Folk Mot of our Teutonic ancestors, like the still surviving Landesgemeinde of Uri or Appenzell, represents in a rural community what the ἀγορά represents in Homeric Greece, what the ἐκκλησία represents in the later Greek cities, and what the _comitia_ represent at Rome; I might add, what (in a more rudimentary form) the popular meeting represents to-day in Albania and what the similar meeting called a _Pitso_ represents among the Basuto and Bechuana Kafirs. Such meetings, like the New England Town Meeting, are Primary, not Representative. They consist of all the freemen within the community, though, in their earlier stage, it is in practice the leading men who determine the action of the whole assembly. They make such laws as there are. Being not only the supreme, but the only legislative authority, they can at any moment change the laws they deem fundamental, if there are any such laws, for the more backward races remain in the stage of mere custom, and do not reach the conception of a fundamental law. Whether the system of their government is formally embodied in one group of specially important laws, or, as more often happens, is left to be collected from a number of enactments connected and supplemented by usages, that system remains on a level with all the other laws and usages, because it emanates from the same source, viz. the governing primary assembly. It is not till the growth of some scheme of representation has made familiar the distinction between the authority of the people themselves and that of their representatives that truly Rigid Constitutions appear, for it is not till then that a method suggests itself of enacting a kind of law which shall be superior to that which the ordinary legislative body creates. Accordingly the Primary Assembly, whether in ancient Greece and Italy or in mediaeval Europe, works for some time, and may create by its constant action what is practically a Constitution (_i.e._ a set of established rules embodying and directing the practice of government), before the idea of a regular political Constitution emerges. That idea comes into being when in the progress of political thought and of jurisprudence men begin to distinguish between laws and customs which relate to the structure of the State and the management of its affairs and those which relate to other matters, such as the civil rights of individuals; and when they also distinguish between rules and usages which are fixed and settled, because generally observed and regularly applied to recurrent facts, and the particular decisions taken in particular cases. In this sense the Romans may have begun to feel they had a Constitution before they had gone far in the conquest of Italy. Our English ancestors reached the same consciousness in the fourteenth century, when much stress began to be laid upon political precedents, and Parliament, by this time a Representative body, and thereby entitled to speak for the nation, had definitely established its rights as against the Crown[67]. The Confirmation of the Charters together with the statute De Tallagio Non Concedendo of A.D. 1297 is often taken as marking the first form of the plainly settled English Constitution, but perhaps the successful resistance of Parliament to King Edward the Third sixty years later is a better point to choose. Anyhow the language of Chief Justice Fortescue (under Henry the Sixth) shows how clearly drawn the main lines of the Constitution had become in his time. When this stage has been reached, efforts are sometimes made to give to these constitutional rules, or to certain among them, an exceptional degree of force and permanence. Such rules may be embodied in a document of special sanctity; or they may be protected by oaths. But the creation of a truly Rigid Constitution comes later, when some system of representation has appeared. I shall presently return to examine the causes which produce it.

Footnote 66:

I use the term ‘despotism’ for convenience, but of course no monarchy is absolutely despotic, and least of all perhaps in the ruder ages; for monarchs are always amenable to public opinion, and most so when they are the leaders of a tribe or people in arms. The real distinction is between a government checked by religious sentiment consecrating ancient usage and by the fear of insurrection, and a government checked by well-established institutions and legal rules. As to Russia, it may be noted that though she has no Constitution in the proper sense, there are said to exist three Fundamental Laws of the Empire—that declaring the sovereign’s autocratic power, that requiring him (or her) to be a member of the Orthodox Church of the East, and that fixing the rule of succession to the throne.

Footnote 67:

The history of England illustrates what is here said regarding small and large communities. The Folk Mot of the West Saxons when it passed into the Magnum Concilium of all England, though it remained in theory a Primary Assembly, was practically no longer a meeting of all freemen. It could not have continued to embody and safeguard the constitutional rights of the people but for the later invention of Representation, which made it again a virtually Popular though no longer a Primary Assembly.

V. THE STRENGTH AND WEAKNESS OF FLEXIBLE CONSTITUTIONS.

The names ‘Flexible’ or ‘Fluid’ which I have suggested for Constitutions of this type, seem to suggest that they are unstable, with no guarantee of solidity and permanence. They are in a state of perpetual flux, like the river of Heraclitus, into which a man cannot step twice. Not only are new laws constantly passed which more or less affect them, but their mere working tends to alter them daily. Just as every man’s character is being every day insensibly modified by the acts he does, by the thoughts he cherishes, by the emotions which each new experience of life brings with it, so every decade saw the Constitution of Rome, and sees the Constitution of England, slightly different at the end of even so short a period from what it was at the beginning. Even a deliberately conservative policy cannot arrest this process of variation. If the change does not for a time appear in the laws, it is in progress in the minds of men, and may have all the more violent a working when it begins to tell upon legislation. A reaction, such as that carried through by Lucius Cornelius Sulla at Rome, or that which followed the fall of the Cromwellian Protectorate in England, is almost as fertile in change as a time of revolution. The past can never be effaced, since the recollection of it is an element in shaping the future, and the measures taken to restore a _status quo ante_ always contain much which was not in that _status quo ante_, much which is in itself new, and the source of further novelties. The only cases in which constitutional development can be said to stop are those where, as at Venice and in some of the cities of post-mediaeval Switzerland, an oligarchy gets control of the government, and, in extinguishing the spirit and the habits of freedom, arrests the natural processes of movement and development until some powerful neighbour overthrows the State, or internal economic changes induce a revolution. Even under a despotism, the system of government changes insensibly from century to century, as it did in the old French monarchy, and as it has recently done among a people so stagnant as the Turks. But despotic systems, being scarcely classifiable as Constitutions, do not come within our present inquiry.

These things being so, it seems natural to assume that Flexible (the so-called ‘unwritten’) Constitutions, having been enacted and being alterable by the ordinary legislative authority, and not being contained in any specially sacred instrument, will in fact be subject to frequent and large changes, and will moreover be so readily transgressed in practice, that they will furnish an insufficient guarantee for public order and for the protection of private rights.

The facts, however, do not support this assumption. Let us take our two typical instances, Rome and England. The Roman Constitution is an extreme case of a Frame of Government capable of being changed in the quickest and simplest way. Nothing was needed but a vote of the _comitia_, on the proposition of a competent magistrate, accompanied by the silence of the tribunes. No doubt any single tribune could paralyse the action of the _comitia_, but in such a community as Rome became in the later days of the Republic it must often have been easy for those who desired a change to ‘get at,’ or to remove, an obnoxious tribune. Yet the Constitution of Rome, regarded on its legal side, changed comparatively little in the three centuries that lie between the Licinian laws and the age of Sulla, for most of those deviations from ancient usage which, as we can now see, were working towards its fall, were in form quite legal, being merely occasional resorts to expedients which the Constitution recognized, though they had been more rarely and more cautiously used in older and better days. So in England, the exercise of the sovereign power is lodged in an assembly which can, on occasion, act with extraordinary promptitude, as when some while ago (April 9, 1883) the Explosives Act was passed through the House of Commons in a few hours (the standing orders having been suspended), and having been forthwith passed by the House of Lords also, received the royal assent next day. So the most sacred rules and principles of the Constitution might with perfect legality of form be abolished—Magna Charta and the Bill of Rights and the Act of Settlement included—just as quickly as the Explosives Act was passed. Yet the main lines of the English frame of government have since 1689 and 1701 remained legally the same; and the most important changes made since the latter year have been effected after long and strenuous controversies[68]. We all know how hard it is to secure even small constitutional improvements, such as the abolition of the provision, confessedly useless and certainly troublesome, which obliges a member of the House of Commons to vacate his seat and seek re-election on his being appointed a Minister of the Crown.

Footnote 68:

The two most important changes, the Union with Scotland and the Union with Ireland, were, however, among those most quickly carried through.

One explanation of this apparent paradox is (though sometimes neglected) obvious enough. The stability of any constitution depends not so much on its form as on the social and economic forces that stand behind and support it; and if the form of the constitution corresponds to the balance of those forces, their support maintains it unchanged. Two other reasons deserve to be more fully stated.

A Flexible or Common Law Constitution sometimes owes its stability to the very conditions which have enabled it to grow out of isolated laws and mere usages into a firmly settled Frame of Government. There have no doubt been many cases, such as those of most of the Greek cities of antiquity, where the eager restless spirit of the people and the violence of faction never allowed any system of government to last long enough to strike deep root. Such constitutions were often enacted all in one piece, and would have been made Rigid, had the citizens who enacted them known how to make them so. They were seldom the growth of long-continued usage. But the best instances of Flexible Constitutions have been those which grew up and lived on in nations of a conservative temper, nations which respected antiquity, which valued precedents, which liked to go on doing a thing in the way their fathers had done it before them. This type of national character is what enables the Flexible Constitution to develop; this supports and cherishes it. The very fact that the legal right to make extensive changes has long existed, and has not been abused, disposes an assembly to be cautious and moderate in the use of that right. Those who have always enjoyed power are least likely to abuse it[69]. This truth might be illustrated both from Rome and from England; and, indeed, from Switzerland also, though the argument which tries to prove the stupid conservatism of democracy from the habits of rural communities in the last-named country has been pressed too far by Sir H. Maine and others, since in rural communities, where nearly every one is a citizen, and well off, and most men about equally well off, the usual motives for making political changes do not exist.

Footnote 69:

Ἀρχαιοπλούτων δεσποτῶν πολλὴ χάρις, Aesch. _Agam._ 1002.

A further reason may be found in the fact that a constitution which has come down in the form of a mass of laws, precedents and customs is not only more mysterious, and therefore more august, to the minds of the ordinary citizens than one they can read in a document, but is not felt by them to lie at their mercy and to live only by their pleasure. A constitution embodied in a document which they have seen drafted, and have enacted by their votes, has no element of antiquity or mystery. It issues from the sovereignty of the people, it reminds them of their sovereignty, it suggests to them nothing more exalted. Perhaps it has been the work of one party in the State; and if that party becomes discredited, it may share the discredit. The dignity which a remote and half mythic origin gives to constitutions, as it does to royal families, was in the ancient world and the Middle Ages enhanced by religious associations. In Greece and Italy the tutelary deities of the city watched over the oldest laws. In mediaeval countries the order of the State seemed an expression of the Will of God. Although these sentiments have vanished from the modern world, the fact that an old constitution represents a long course of progressive development, or, to use a somewhat vulgarized term, of evolution, gives it some claim on the respect of imaginative or philosophical minds. These sources of moral strength have been found sufficient in many countries to secure an enduring life for political institutions which the people, or a legislative body, had it in their power to change, and which, in some instances, ought to have been replaced by other institutions more suited to their altered environment.

It would, therefore, be an error to pronounce Flexible Constitutions unstable. Their true note, their distinctive merit, is to be elastic. They can be stretched or bent so as to meet emergencies, without breaking their framework; and when the emergency has passed, they slip back into their old form, like a tree whose outer branches have been pulled on one side to let a vehicle pass. Just because their form is not rigidly fixed, a temporary change is not felt to be a serious change. The sentiment of respect for the established order is not shaken. The old habits are maintained, and the machine, modified perhaps in some detail which the mass of the people scarcely notice, seems to go on working as before.