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.
-----
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.