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.
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.