Part 15

Whether the working is really the same is another matter. During two centuries and a half, from Edward the Third till James the First, the Constitution of England remained in its legal aspect scarcely altered. Though at some moments within that period Parliament seemed to have mightily gained on the Crown, and at others the Crown seemed to be dominating Parliament, yet it was, until the Civil War, doubtful whether any permanent change had been effected. From the days of Queen Anne to those of William the Fourth the Constitution preserved a legal character practically the same. But it had been altered essentially in substance. So we may say that while the Flexible character of a constitution sometimes enables it to recover from shocks without injury, that character sometimes conceals the effects of a shock, since these effects may take the form of changes of usage and changes of opinion among the citizens which have not been expressed, perhaps hardly can be expressed, in a definite legal form. The relations to one another of the two Houses of the British Parliament, and the relations of Parliament to the now self-governing British Colonies, are instances in point.

No constitution illustrates these phenomena better than did that of Rome. It was a complicated piece of work, made of many pieces, firmly attached, yet each piece playing freely. It had to be bent, twisted, stretched in many ways, under the pressure of divers exigencies. But it stood the strain of being bent or stretched, and when the force that had bent it was withdrawn, could return so nearly to its original shape as to seem to have never been disturbed. The change from consuls to military tribunes, the frequent appointment of a dictator, the memorable episode of the Decemvirate, the creation of new magistracies, even the admission of new and sometimes large masses of persons to citizenship and voting power, and the adaptation of its old machinery to the new task of governing conquered provinces, did not, during several centuries, permanently disturb its balance or seriously shake its main principles. Suspensions of the ordinary rights of the private citizen, extensions of the ordinary powers of the magistrate, which would have ruined most States by setting dangerous precedents, were at Rome found harmless because law and custom recognized them as expedients available in case of need, and, in legalizing them, took away their revolutionary character. Thus, being parts of the Constitution, though parts to be used only in emergencies, they did not shock conservative sentiment nor encourage attempts pernicious to freedom—did not, that is to say, until at last the character of the city population had so completely changed and the dominions of the Republic had so prodigiously grown that the old Constitution was obviously out of date, unfit for work immensely heavier than that for which it had been constructed.

A Greek city, or an Italian city of the Middle Ages, which delivered itself into the hands of a dictator when pressed by its neighbours, almost invariably found that it had given itself a master who refused to resign his power when the danger was past, but continued to rule as a Tyrant or Signore. This happened not merely because the people were passionate and the leading men ambitious, for there was plenty both of passion and of ambition among the Romans, but largely because in those cities no provision was made for such emergencies; so that when it became necessary to place extraordinary powers in one or few hands, the Constitution received a violent wrench, from which it might not recover. At Rome the contingency had been foreseen, and the mode of meeting it was legal. A spirit had been formed among the body of the people as well as among the leading men which held ambition in check. The dictator was not intoxicated by his elevation. The citizens did not lose their faith in the soundness of their system; and it justified their confidence.

The elasticity of the British Constitution appears in somewhat different features, less striking perhaps than those which mark Rome, but not less useful. We English appoint no dictators, seeing that we have always fortunately had a permanent head of the Executive, though latterly one rather nominal than real, and have seldom been exposed to the dangers which the city-states of the ancient world had to fear. But we have kept in reserve a wide and vague prerogative, which, though it cannot in practice be put in force against the will of the representative House of Parliament, may be employed to effect things far more important than many other things for which express legislative authority is required. The control of the army and navy and the control of foreign policy are instances. There are, moreover, ways in which the normal powers of the Executive may be immensely increased. When a statute, such as the Habeas Corpus Act, is suspended, or when a Vote of Credit for a very large sum of money is passed, the control of the ordinary law and courts in the one case, and the control of the House of Commons in the other case, over the Ministers of the Crown, is for the time being (especially if Parliament is not sitting) and for some purposes practically suspended; and the Sovereign (or rather the Cabinet) of to-day is almost replaced in the position of the last Tudor or the first Stuart. Stringent measures to repress disorder may be taken at home, military operations may be threatened or begun abroad which would be beyond the legal competence of the Crown in the former case and its ordinary discretionary powers and functions, as fixed by custom, in the latter. So too when it became necessary in view, not of an emergency, but of the general convenience of administration, to delegate to inferior authorities the supreme legislative power of Parliament, advantage was taken of the old royal prerogative and of that ancient body the Privy Council. Parliament gave power to the Crown to issue Orders in Council dealing with large classes of matters which must otherwise have been dealt with by statute; and these Orders take effect sometimes at once, sometimes when a certain period has elapsed during which they have lain before Parliament and received from it no disapproval. In this way a vast mass of secondary legislation is annually enacted which, though it does not directly issue from Parliament, carries parliamentary authority, and does not infringe the principle that Parliament is the only true source of law. And, similarly, out of the ancient judicial functions of the Crown and of the Council which advised the Crown, functions which a century ago seemed to be lapsing into desuetude, there has been evolved a new system of judicature. A body called the Judicial Committee of the Privy Council, somewhat resembling the Consistory of the Roman Emperors, has been created, and now acts as a Supreme Court of Appeal for all the transmarine possessions of Britain, whether Indian or Colonial.

The merit of this elastic quality in such Constitutions as the Roman and the British is that it affords a means of preventing or minimizing revolutions by meeting them halfway. Let us note how each kind of Constitution, the Rigid and the Flexible, behaves when a serious crisis arrives, in which one section of the nation is bent on changing the Constitution, and the other on maintaining it. A Rigid Constitution, if the legal means provided for altering it cannot be used for the want of the prescribed legal majority, resists the pressure. It may of course resist successfully, but if so, probably after a conflict which has shaken the State and excited hostility to it in the minds of a large part of the people. It may, however, if the assailing forces are very strong, be broken, and if so, broken past mending. A Flexible Constitution, however, being more easily and promptly alterable, and being usually a less firmly welded and cohesive structure, can bend without breaking, can be modified in such a way as to satisfy popular demands, can escape revolution by the practical submission of one of the contending forces in the particular dispute, that submission being recognized as a precedent which will be followed, even though it has not been embodied in any law or other formal document. The extinction of the right once claimed by the House of Lords to alter money bills is one instance. Or it may be made to evolve some organ which, though really new, conceals its novelty by keeping some of the old colour, and thus it may continue to work with no palpable breach of continuity. The knowledge that a constitution can be changed without any tremendous effort helps to make a party of revolution less violent and a party of resistance less stubborn, disposing both to some compromise. At Rome the resort to the appointment of military tribunes with consular power when the plebs demanded, and the patricians would not yet consent to the election of a plebeian Consul, delayed revolution till opinion had so changed that the danger of revolution had passed away. So, later, the compromise by which a Praetor was created with the functions of a Consul but with a special range of duties appeased conservative feeling and smoothed the passage from the old order to the new. The history of the English Constitution is a history of continual small changes, no single one of which, hardly even the Bill of Rights at the time of the so-called Revolution, or the Reform Act of 1832, made the system look substantially different. Something no doubt was cut away, and something was added, but the structure as a whole seemed the same, because far more of the old was left than there was added of the new.

The two main processes which have turned the government of England from the monarchy of the Tudors into what may be called the plutocratic democracy of to-day have been the limitation of the royal prerogative and the transference of the right of suffrage from a few to the multitude. Both processes have gone on slowly, by a succession of steps, each comparatively small, but all in the same direction. Accordingly the strife of parties has been mitigated by the existence at all, or nearly all, moments, of a large body of persons who desired reform, but only a moderate reform. They are the persons who impose compromise on the extremists to the right and to the left of them, and they can do so because the Constitution permits small reforms to be easily effected. The party of change, which would be a party of revolution if it was obliged to have large changes or none, is apt to be divided, and its more moderate section is, or soon passes into, a party only of reform. The English Chartists of 1840-50 caused some alarm. But between them and the old Constitutional Whigs there were several sections of opinion passing by imperceptible gradations into one another; and when it was seen that the current was setting towards changes approximating to those which the Chartists demanded, their less violent men were by degrees reabsorbed into the general body of the Whig or Liberal party, the latter at the same time moving with the times; and some of those changes, in particular vote by ballot, were ultimately obtained with no great friction.

It must nevertheless be remembered that in the history of most States a crisis is apt to arrive when elasticity becomes a danger, in that it tempts people to abuse the facility for change. There is no better sign of strength in a man’s physical constitution than his being able to make some short, sudden, and violent effort without suffering afterwards from doing so; and there is nothing of which the happy possessor of such strength is more proud. But most men who have reached middle life are aware that the temptation to strain one’s strength in this exultant spirit is perilous. Repeated impunity is apt to encourage a man to go on trying experiments when the conditions are perhaps less favourable, or when the reserve of force is less abundant than it was in youth. The story goes that the famous Milo of Croton, passing alone through a forest, saw an oak into which woodmen who were preparing to fell it had driven wedges. Pulling out the wedges, he tried to rive it asunder. But he had no longer the fullness of his youthful strength. The returning tree caught him by the hands and held him fast till he died. In our own days Captain Webb, stimulated by his feat in swimming across the English Channel, sought still bolder exploits, and perished in the Whirlpool Rapid below Niagara Falls. So the Romans, having many a time given exceptional powers for special occasions to their magistrates, found at last that they had created precedents which enabled the old free Constitution to be in substance overthrown. Sulla became a dictator of a new kind. After a while he resigned his power, but the example showed that monarchy was not far off. Julius Caesar also received exceptional authority, and used it to form an army which extinguished the Republic. The dictatorship he had held passed under other forms into permanent absolutism, and what was practically a revolution was ultimately carried through with a certain deference to the old constitutional forms. In England, Parliament, during the sixteenth century, once or twice gave powers to the Crown which brought the Constitution into danger. In the seventeenth century the monarchy was abolished, and a Protectorate set up by revolutionary methods. This was the result of a war which had destroyed a vital part of the old machine, much to the regret of most of those who had in the first instance taken up arms. We have never since that date (except under King James the Second) seen the Constitution in any real danger.

It is, however, often suggested that the enormous power possessed by Parliament might be used to upset fundamental institutions with reckless haste, and that it might therefore be prudent to impose restrictions on parliamentary action. And those who note the way in which Parliament bends and staggers under the increasing burden of work laid on it, coupled with the inadequacy of its rules to secure the prompt dispatch of business[70], have frequently predicted that the House of Commons may one day deliver itself into the hands of the Cabinet, the power of party organization having grown so strong that the head of each Cabinet will be deemed a sort of dictator, drawing his authority, nominally of course, from the House of Commons, but really from a so-called direct ‘mandate’ of the electors[71]. Others draw a yet more horrible picture of a party machine, which they call the Caucus, dictating a policy to the electors on the one hand, and to the Cabinet on the other, itself reigning in the spirit of a tyrant, but under the forms of the Constitution. If the British Constitution, as we have hitherto known it, should perish, there is little reason to fear it will do so in this eminently ignoble fashion[72].

Footnote 70:

This was written in 1884. Since that year sweeping changes have been made in the procedure of the House of Commons which have greatly curtailed the rights and opportunities of private members while increasing the powers of the Ministry of the day. They have not, however, made that House able to discharge all or nearly all the work that falls on it; and it is becoming (under the new rules) less and less careful in the exercise of its powers of voting money.

Footnote 71:

This apprehension was often expressed between 1880 and 1885. Nothing has occurred since to justify it so far as the dictatorship of any single person is concerned; and it may have in great part arisen from the fact that from 1867 to 1885 the headships of both the two great parties had been vested in exceptionally vigorous and influential leaders. There can however be no doubt that the power of the Cabinet as against the House of Commons has grown steadily and rapidly: and it appears (1901) to be still growing.

Footnote 72:

Of this supposed danger also much less is heard now than in 1884. The thing that was then called the ‘Birmingham Caucus’ has ceased to be used to terrify the timid.

When Flexible Constitutions come to an end, they do so in one of two ways. Sometimes they pass into an autocracy, either dying a violent death by revolution, or expiring in a more natural manner through the extension and development, under legal forms, of one of their organs, to a point at which it practically supersedes and replaces the other organs. Sometimes, on the other hand, they pass into Rigid Constitutions. The causes which induce this latter change belong, however, to the examination of that second type of Constitution; and will be considered when we have surveyed some further features characteristic of the Flexible type.

VI. ARISTOCRACIES AND FLEXIBLE CONSTITUTIONS.

Flexible Constitutions have a natural affinity for an aristocratic structure of government. I do not mean merely that they spring up at times when power is in the hands of the well-born or rich, for the stage of society in which constitutions, properly so called, begin to exist, is nearly always oligarchic, even if there be a monarch at the head of it. But there is a sort of natural attraction between an aristocracy and an undefined and elastic form of government, as there has begun to be, in most modern countries, a natural repulsion between such a form and a pure democracy. It needs a good deal of knowledge, skill and experience to work a Flexible Constitution safely, and it is only in the educated classes that these qualities can be looked for. The masses of a modern nation seldom appreciate the worth of ancient usages and forms, or the methods of applying precedents. In small democratic communities, such as are the Forest Cantons of Switzerland, this attachment to custom may be found, because there traditions have passed into the life of the people, and the maintenance of ancient forms has become a matter of local pride. But in a large nation it is only educated men who can comprehend the arrangements of a complicated system with a long history, who can follow its working, and themselves apply its principles to practice. The uninstructed like something plain, simple and direct. The _arcana imperii_ inspire suspicion, a suspicion seldom groundless, because the initiated are apt to turn a knowledge of secrets to selfish purposes. Now a Common Law Constitution with its long series of precedents, some half obsolete, some of doubtful interpretation, is full of _arcana_. Even to-day, though the process of clarification and simplification has gone on fast since 1832, dark places are still left in the British Constitution.

There is, however, a further reason why Common Law Constitutions accord better with aristocratic than with democratic sentiment. They allow a comparatively wide discretion to the chief officials of State, such as the higher magistrates at Rome and the Ministers of the Crown in England. The functions of these officials are not very strictly defined, because legal enactments, though they limit power in certain directions (far more rigidly now in England than was the case at Rome), do not draw a completely closed circle round it, but leave certain gaps, through which tradition and precedent permit it, so to speak, to shoot out and play freely. Aristocracies prize this latitude. They prize it because it is mainly to prominent members of their class that offices fall, and these persons are then able to act with freedom, to assert their individual wills, to carry out their views unchecked by the dread of transgressing a statute. On the other hand, the less conspicuous members of the upper class have at any rate little reason to fear harm from the wide authority of the officials, because their social position, and the influence of their family connexions, protect them from arbitrary treatment. The masses of the people have neither advantage. Very few of them can hope to enjoy power. Any one of them may suffer from an exercise of it, which, because not positively illegal, gives him no claim for redress. They have, therefore, everything to gain and nothing to lose if they can restrict it by those definite and fixed limitations which are congenial to Rigid rather than to Flexible Constitutions. And in the history of most peoples a time arrives when, the love of equality being reinforced by the distrust of authority, there is a movement to cut down the powers of the rulers to the lowest point compatible with the safety of the State. The extent to which this process has gone is in any nation a fair test of the gains made by the democratic principle upon the aristocratic. But in this respect the course things have taken in England has been very unlike that which they took at Rome. One of the first events which the authentic history of Rome records is the effort of the plebeians to secure a limitation of the power of the Consuls by having statutes passed to define it. The effort failed. It is characteristic of the Romans that it should have failed. Statutes, known afterwards as the Laws of the Twelve Tables, were enacted, statutes which doubtless on the whole improved the position of the plebeians. But the powers of the Consuls remained wide and legally indefinite down till the time when life went out of them under the shadow of an autocrat who ruled for life. Limited of course these powers had to be as time went on and the popular element in the constitution was developed, but the limitations were imposed, not by narrowing the powers themselves, but by the introduction of new factors. The two Consuls, being chosen from a circle less narrow than in the old days, were more frequently at variance with one another. Other officials were set up over against the Consuls, who could (if they pleased) interfere to restrain the Consuls. And thirdly, the permanent non-representative Council of Elders (the Senate), composed mainly of ex-officials, increased its influence, and could generally hold the magistrates in check. Things went very differently in England. There the prerogative of the Crown was the force of which the nobles as well as the commons stood in dread, and they united in the effort to restrict it down till a time when the commons were strong enough to dispense with the help of more than a section of the landowning magnates. In steadily reducing the prerogative of the Crown, in lopping off some parts of it and strictly defining others, they restricted the powers of the Crown and its Ministers, until at last they had so firmly established the right of the representative assembly to prescribe to the Crown what persons it should employ as Ministers that the old motive for limiting the prerogative vanished. Those who had been feared as masters were now trusted as servants. The people no longer disliked what was left of the royal prerogative, because their representatives could control the persons who wielded it, and the members of the ruling assembly began to feel that it was in the public interest, and not against their own personal interest, to maintain the powers of Ministers, because many things could be done more easily and more promptly through these powers than by the passing of statutes for dealing with each matter in detail. There may even be a danger, in this new condition of things, that the royal prerogative will be used too freely, because that prerogative now means the will of the leaders of the parliamentary majority, whose action might at a moment of excitement be applauded and sustained by their followers even should it transcend the limits fixed by constitutional usage.