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.
It has been already remarked that the system of checks in the Roman
Constitution differed essentially from that employed in the English.
Every constitution must of course have a system of checks, else it will
quickly perish, or, to vary the metaphor, it must so dispose the ballast
as to enable the vessel to recover her equilibrium after a violent
oscillation. At Rome the checks consisted in the coexistence of various
magistrates who could arrest one another’s action, and in a permanent
Senate with a large though somewhat ill-defined control, while the
popular assembly, in theory omnipotent, was in fact restrained by a
number of curious features in its procedure which made it much less
effective than was the primary popular assembly in most of the Greek
republics. It could act only when convoked by a magistrate, could have
its action stopped by another magistrate, and was frequently overreached
or circumvented by the Senate. In England, on the other hand, the Crown,
which before the conflicts of the seventeenth century had been the
predominant power which needed to be checked, and which frequently was
checked, by Parliament, becomes after that time capable only of
occasionally baffling (and that less and less as time went on) the now
predominant Parliament, while the restraint on hasty or violent action
by Parliament was found, partly in the division of Parliament into two
Houses, and partly, especially after the Upper House had begun to lose
moral weight, and had passed more and more under the control of one
party in the State, in the fact that an assembly of representatives,
nearly all of whom belonged to the wealthier and so-called upper
classes, was pervaded by a conservative temper. A representative body,
the members of which are mostly satisfied with the world as it is, and
who are sufficiently instructed to respect the traditions of
administration, is, except where a question arises which stirs class
passions, less prone to ill-considered action than is an assembly of all
the citizens, such as was the Ecclesia of Athens or Syracuse, where the
large majority were humble folk, and where the sympathy of numbers made
the ascendency of emotion over reason doubly dangerous. Thus, as
compared with the democracies of the city-states of antiquity, the
representative character of the assemblies of modern Europe has been a
moderating factor. But these assemblies are now changing their
character, as the countries in which they exist have changed. The
progress of science has, through the agency of railways and telegraphs,
of generally diffused education, and of cheap newspapers, so brought the
inhabitants of large countries into close and constant relations with
one another and with their representatives, that the conditions of a
small city-state are being reproduced. A man living at Kirkwall knows
what happened last night in London, eight hundred miles away, sooner and
more fully than a man living in Marathon (distant eight hours’ walking)
knew what had happened the day before in Athens. The same news reaches
all the citizens at the same time, the same emotion affects all
simultaneously, and is intensified by reverberation through the press.
The nation is, so to speak, compressed into a much smaller space than it
filled three centuries ago, and has become much more like a primary
assembly than it was then. If concurrently with this change there should
come, as some presage, a closer and more constant control of the members
of the representative assembly by their constituents, the
representatives becoming rather delegates acting under instructions than
men chosen to speak and vote because they are deemed trusty and
intelligent, much of the moderative value which the representative
system has possessed will disappear.
It need not be thought that in England at least there is any immediate
risk of evils to be expected from the change which has been noted.
Representatives have not yet become delegates, and if they do, it will
be rather their own fault than that of the electors, for the electors
respect courage and value independence. In England the power of party
organizations over constituencies and members, if it grows, grows
slowly. It is, in fact, not so much these organizations as small
sections of opinion or organized ‘interests,’ seeking some advantage for
themselves, that try to terrorize candidates. There is still a valuable
check on possible recklessness on the part of Parliament in the fact
that it is (unlike some popular assemblies) guided by responsible
Ministers, who have hitherto seldom been mere demagogues, and who have
experience behind them, prospects of future dignity before them, and the
opinion of their own class around them. All that I wish to point out is
that a change has passed on the conditions under which representative
assemblies act, which in making them more swiftly responsive to public
sentiment, increases some of the risks always incident to popular
government. History has not spoken her last word about Flexible
Constitutions. Rather may she be opening a new stage in their
development.
VII. THE INFLUENCE OF CONSTITUTIONS ON THE MIND OF A NATION.
We have been considering what are the conditions present in a nation
which make it prefer a particular kind of constitution. Now let us
approach the converse question, and inquire what will be the influence
on the political ideas and habits of a nation of these Constitutions of
the Common Law, or Flexible type, and what are the features of national
character which will enable such constitutions to live on and prosper.
Forms of government are causes as well as effects, and give an
intellectual and moral training to the peoples that live under them, as
the character of a parent affects the children of the household. Now the
Common Law Constitution, with its complexity, its delicately adjusted
and balanced machinery, its inconsistencies, its _nuances_—one is driven
to French because there is no English word to express the tendency of a
tendency—its abundance of unsettled points, in which a refined sense can
perceive what the decision ought in each case to be without being able
to lay down a plain and positive rule—such a constitution must
undoubtedly polish and mature in the governing class a sort of tact and
judgement, a subtlety of discrimination and a skill in applying old
principles to new combinations of facts, which make it safe for a people
to leave wide powers to their magistrates or their governing assembly. A
sense grows up among those who have to work the constitution as to what
is and is not permissible under it, and that which cannot be expressed
in the stiff phrases of a code is preserved in the records of precedents
and shines through the traditions which form the minds of the rulers.
This kind of constitution lives by what is called its Spirit. ‘The
letter killeth, but the spirit giveth life.’
Evidently, however, it is only among certain nations with certain gifts
that such a constitution will come to maturity and become a subject for
science as well as a work of art. Three things seem needful. One is
legal-mindedness, a liking and a talent for law. Another is a
conservative temper, by which I mean the caution which declines to make
changes save when a proved need for change arises, so that changes are
made not suddenly, but slowly and bit by bit. The third is that
intellectual freshness and activity which refuses to be petrified by
respect for law or by aversion to change. It is only where these three
qualities are fitly mixed or evenly balanced that either a great system
of law or a finely tempered and durable constitution can grow up. Many
otherwise gifted peoples have, like the Athenians in ancient and, _longo
intervallo_, the Spaniards in modern times, wanted one or other of these
qualities, and have therefore failed to enrich the world by law or by
constitutions. Perhaps it was partly owing to their possessing other
gifts, scarcely compatible with these, that the Athenians did fail.
But although, when a nation has reached the point at which its law
begins to be scientific, the law and the constitution become teachers,
it must be remembered that the training they give is mainly given to the
classes which practise law and administer the State. For though a nation
as a whole may come to understand and appreciate in outline its
constitution, and may attain to a fairly correct notion of the functions
of each organ of government, only a comparatively small section
comprehends the system well enough to work it or to criticize its
working. For such comprehension there is needed not only some knowledge
of history but also close and continuous observation of the machinery in
motion, and either participation in the business of governing or
association with those who are carrying on that business. The mass of
the nation cannot be expected to possess this familiarity. They are like
the passengers on board an ocean steamer, who hear the clank of the
engine and watch the stroke of the piston and admire the revolution of
the larger wheels, and know that steam acts by expansion, but do not
know how the less conspicuous but not less essential parts of the
machinery play into the other parts, and have little notion of the use
of fly-wheels and connecting-rods and regulators. They can see in what
direction the vessel is moving, and can conjecture the rate of speed,
but they must depend on the engineers for the management of boilers and
engines, as they do on the captain for the direction of the ship’s
course. In the earlier stages of national life, the masses are usually
as well content to leave governing to a small upper class as passengers
are to trust the captain and the engineers. But when the masses obtain,
and feel that they have obtained, the sovereignty of the country, this
acquiescence can no longer be counted on. Men without the requisite
knowledge or training, men who, to revert to our illustration, know no
more than that steam acts by expansion and that a motion in straight
lines has to be turned into a rotary one, men who are not even aware of
the need for knowledge and training, men with little respect for
precedents, and little capacity for understanding their bearing, may
take command of engines and ship: and the representative assembly may be
filled by those who have no sense of the dangers to which an abuse of
the vast powers of the assembly may lead. If such a change arrives, it
imposes a severe strain on the constitution; and that elasticity which
has been its merit may prove its danger.
It may accordingly be said that one of three conditions is generally
necessary for the salvation of a Flexible Constitution. Either (1) the
supremacy must remain in the hands of a politically educated and
politically upright minority, or (2) the bulk of the people must be
continuously and not fitfully interested in and familiar with politics,
or (3) the bulk of the people, though legally supreme, must remain
content, while prescribing certain general principles, to let the
trained minority manage the details of the business of governing. Of
these conditions the first has disappeared from nearly all civilized
countries. The second has always been rare, and in large industrial
countries is at present unattainable. The best chance of success is
therefore to be found in the presence of the third; but it needs to be
accompanied by a tone and taste and sense of public honour among the
people which will recoil from the mere demagogue.
Both the influence of its constitution upon a nation and the need of
certain qualities in order to work a Flexible Constitution are well
illustrated in the history of the Roman commonwealth. Of all famous
constitutions it was the most flexible. It lived long and overcame many
perils because it grew up among a people who possessed in an eminent
degree the three qualities of legalmindedness, of conservatism, and of
keen practical intelligence. It trained the national mind to a respect
for order and legality, and had doubtless much to do with the forming of
that constructive genius which created the whole system of Roman private
law. It fell at last because the mass of the citizens became unfit to
discharge their function in the scheme. They did not, it is true, press
into the inner circle of the governing class. The success first of the
well-born and then of the rich in keeping the offices in their own hands
all through is one of the most remarkable features of Roman history. But
they were corrupt and reckless in the bestowal of power, and had really
ceased to care for the freedom and welfare of the State. The ruling
classes, on the other hand, were tempted by the demoralization of the
masses to be their corrupters, and lost their old respect for legality.
Even a conscientious philosopher like Cicero did not scruple to put
prisoners to death without trial, and to justify himself by citing an
act of lawless violence done four centuries before. The leading Romans
of that day were as fit as ever to work the system, so far as skill and
knowledge went, but they had not the old regard for its principles, nor
the old sense of public duty; and the prizes which office offered now
that Rome was mistress of the world were too huge for average virtue to
resist. The moral forces which had enabled the Roman Constitution to
work in spite of its extraordinary complexity, and to live, in spite of
the risks to which its own nature exposed it, were now fatally
enfeebled. These abuses of power on the one hand, and on the other hand
the deadlocks which the system of checks caused, grew more frequent and
serious. Each successive wrench which the machine received became more
violent, because neither faction had patriotism enough to try to ease
them off, and so break the force of the shock. From the beginning of the
Republic the chief danger had lain in the immense powers vested in the
magistrates. These powers had been necessary, because the State was
constantly exposed to attacks from without; and nothing but the sense of
devotion to the interests of the State had controlled the party spirit
which rages more fiercely within the walls of a city than it does in a
large and scattered community. Now that Rome had vast dominions to rule,
and now that her frontiers extended to the very verge of civilization,
involving her in long wars with great monarchies or groups of tribes on
those frontiers, large powers had to be entrusted to military chiefs,
and entrusted for long periods. Thus the Republican constitution fell
through the very faults which had always lain deep in its bosom, though
an over-mastering patriotism had in earlier days kept them harmless.
It is never easy, in studying the history of an institution, to
determine how much of its success or its failure is due to its own
character, how much to the conditions, external and domestic, in the
midst of which it has to work. The fortunes of the Roman Constitution
would doubtless have been different had Rome been less pressed by
foreign enemies in her earlier days, or had she been less of a
conquering power in her later. So too it is hard to compare States so
different as Rome—whose Constitution was always that of a City, and
failed to widen itself so as to become a Constitution for Italy—and
England, whose Constitution has always since the days of Ecghbert and
Alfred been that of a large and originally a rural and scattered
community. If, however, the comparison is attempted, we may observe that
England never, after the fourteenth century, recognized such vast powers
in the Crown (whether in the Crown personally or as exercised by its
Ministers) as Rome granted to her magistrates. In the sphere of public
law England has applied more successfully than Rome did the conception
of the inviolability of the rights of the citizen as against the organs
of the State, although that conception is itself Roman. With all their
legal genius the Romans were too much penetrated by the idea of the
necessary amplitude of State power to fix just limits to the action of
the Executive. When it was necessary to provide for checking a
magistrate, they set up another magistrate to do it, instead of limiting
magisterial powers by statute. Nor did they ever succeed as the English
have done in disengaging the judicial from the executive department of
government. In both these respects part of the merits of the English
Constitution may be ascribed to Norman feudalism, whose precise
definition of the respective rights of lord and vassal—all the lords but
one being also vassals, and the greater vassals being also lords—helped
to form and imprint deep the idea that powers, however strong within a
definite sphere, may be strictly confined to that sphere, and that the
limits of the sphere are fit matter for judicial determination. Perhaps
the existence in the clergy of a large class of men enjoying specific
immunities the exact range of which had to be settled, and, where
possible, judicially settled, may have also contributed to train this
habit of mind. The extent to which England, favoured no doubt by her
insular position, was able to secure domestic freedom while leaving a
large discretionary authority to the Crown, is usually credited to the
rise of the House of Commons and the vigilance of its control. But much
is also to be ascribed to that precise definition of the rights of the
individual which has made life and property secure from injury on the
part of the State, to the habit of holding officials liable for acts
done in excess of their functions, and to that ultimate detachment of
the judiciary from the influence of the Crown which has enabled the
individual to secure by legal process the enforcement of his rights.
These principles have sunk deep into the mind of the nation, and have
been of the utmost service in forming the habits of thought and action
by which free constitutions have to be worked. They are just as strong
as if they were embodied in a Rigid Constitution, instead of being
legally at the mercy of Parliament. But that is because they have
centuries of tradition behind them, and because the English are a people
who respect tradition and have been trained to appreciate the value of
the principles which their ancestors established.
VIII. CAPACITY OF CONSTITUTIONS FOR TERRITORIAL EXPANSION.
One point more remains to be mentioned before we quit constitutions of
the Flexible type, viz. their suitability to a State which is expanding
its territory and taking in other communities whether by conquest or by
treaty.
Such constitutions seem especially well suited to countries which are
passing through periods of change, whether internal or external. When
new classes of the population have to be admitted to share in political
power, or when the inhabitants of newly-acquired territories have to be
taken in as citizens, this is most quickly and easily effected by the
action of the ordinary legislature. Both Rome and England availed
themselves of this flexibility in the earlier stages of their growth.
England, itself created as a State by the expansion of the West Saxons,
enlarged herself to include Wales with no disturbance of her former
Constitution, and similarly fused herself with Scotland in 1707 and with
Ireland in 1800, in both cases altering the Constitution of the enlarged
State no further than by the admission of additional members to the two
Houses of Parliament, and by the suppression of certain offices in the
smaller kingdoms. The ease with which the earlier expansions were
effected may be attributed to the fact that in mediaeval times the
prominence of the king made the submission of any tribe or territory to
him carry with it the incorporation of that tribe or territory into his
former dominions. The popular assembly of a community, such as were the
South Saxons, for instance, sank into a secondary place as soon as the
king was head of the South Saxons as well as of the West Saxons, for the
council of the united people which he summoned and over which he
presided became the national assembly for all his subjects. In later
times, though Scotland and Ireland had their separate Parliaments, these
could be readily united with that of England, because in all three
countries the popular House was representative. Here, however, England
has stopped. The vast dominions which she possesses beyond the oceans,
while legally subject to her Crown and Parliament, have not been brought
into the constitutional scheme of the motherland. Indeed they could
hardly be brought in without a reconstruction of the present frame of
government, which would probably have to be effected by the
establishment of a Rigid Constitution.