political character of a nation, in stimulating its intelligence and
training its judgement, it was remarked that only the governing class, a
very small part of the nation even in democratic countries, are directly
affected. This is less true of a Rigid Constitution. While a Flexible
Constitution like the Roman or English requires much knowledge, tact and
courage to work it, and develops these qualities in those who bear a
part in the working of it, as legislators or officials or magistrates, a
Rigid Constitution tends rather to elicit ingenuity, subtlety and
logical acumen among the corresponding class of persons. It is apt to
give a legal cast to most questions, and sets a high, perhaps too high,
premium on legal knowledge and legal capacity. But it goes further. It
affects a much larger part of the community than the Flexible
Constitution does. Few even of the governing class can be expected to
understand the latter. The average Roman voter in the _comitia_ in the
days of Cicero, like the average English voter at the polls to-day,
probably knew but little about the legal structure of the government he
lived under. But the average Swiss voter, like the average native
American voter (for the recent immigrant is a different sort of
creature), understands his government, can explain it, and has received
a great deal of education from it. Talk to a Swiss peasant in Solothurn
or Glarus, and you will be astonished at his mastery of principles as
well as his knowledge of details. Very likely he has a copy of the
Federal Constitution at home. He has almost certainly learnt it at
school. It disciplines his mind much as the Shorter Catechism trained
the Presbyterian peasantry of Scotland. As there is no mystery about a
scheme of government so set forth, it may be thought that he will have
little reverence for that which he comprehends. It is, however, his own.
He feels himself a part of the Government, and seems to be usually
imbued with a respect even for the letter of the instrument, a wholesome
feeling, which helps to form that law-abiding spirit which a democracy
needs.
A documentary Constitution appears to the people as the immediate
outcome of their power, the visible image of their sovereignty. It is
commended by a simplicity which contrasts favourably with the obscure
technicalities of an old common law Constitution. The taste of the
multitude, and especially of that class which outnumbers all other
classes, the thinly-educated persons whose book-knowledge is drawn from
dry manuals in mechanically-taught elementary schools, and who in after
life read nothing but newspapers, or penny weeklies, or cheap novels—the
taste of this class, and that not merely in Europe but perhaps even more
in the new countries, such as Western America and the British Colonies,
is a taste for ideas level with their comprehension, sentiments which
need no subtlety to be appreciated, propositions which can be expressed
in unmistakable positives and negatives. Thus the democratic man (as
Plato would call him) is pleased to read and know his Constitution for
himself. The more plain and straightforward it is the better, for so he
will not need to ask explanations from any one more skilled. And a good
reason for this love of plainness and directness may be found in the
fact that the twilight of the older Constitutions permitted abuses of
executive power against which the express enactments of a Rigid
Constitution protect the people. Magna Charta, the Bill of Rights, the
Twelve Tables, were all fragments, or rather instalments, of such a
Constitution, rightly dear to the commons, for they represented an
advance towards liberty and order[88].
-----
Footnote 88:
The ‘People’s Charter’ of 1848 was called for as another such onward
step. Its Six Points were to be the basis of a democratic
reconstruction of the government.
-----
The theory of democracy assumes that the multitude are both competent
and interested; competent to understand the structure of their
government and their own functions and duties as ultimately sovereign in
it, interested as valuing those functions, and alive to the
responsibility of those duties. A Constitution set out in black and
white, contained in a concise document which can be expounded and
remembered more easily than a Constitution growing out of a long series
of controversies and compromises, seems specially fitted for a country
where the multitude is called to rule. Only memory and common sense are
needed to master it. It can lay down general principles in a series of
broad, plain, authoritative propositions, while in the case of the
‘historical Constitution’ they have to be gathered from various sources,
and expressed, if they are to be expressed correctly, in a guarded and
qualified form. Now the average man, if intelligent enough to comprehend
politics at all, likes general principles. Even if, as some think, he
overvalues them, yet his capacity for absorbing them gives him a sort of
comprehension of his government and attachment to it which are solid
advantages in a large democracy.
Constitutions of this type have usually arisen when the mass of the
people were anxious to secure their rights against the invasions of
power, and to construct a frame of government in which their voices
should be sure to prevail. They furnish a valuable protection for
minorities which, if not liable to be overborne by the tyranny of the
mass, are at any rate liable to be disheartened into silence by superior
numbers, and so need all the protection which legal safeguards can give
them. Thus they have generally been accounted as institutions
characteristic of democracy, though the cases of Germany and Japan show
that this is not necessarily true.
A change of view has, however, become noticeable within the last few
years. In the new democracies of the United States and the British
self-governing Colonies—and the same thing is true of popularly governed
countries in Europe—the multitude no longer fears abuses of power by its
rulers. It is itself the ruler, accustomed to be coaxed and flattered.
It feels no need for the protection which Rigid Constitutions give. And
in the United States it chafes under those restrictions on legislative
power, embodied in the Federal Constitution or State Constitution (as
the case may be), which have surrounded the rights of property and the
obligation of subsisting contracts with safeguards obnoxious, not only
to the party called Socialist, but to reformers of other types. As these
safeguards are sometimes thought to prevent the application of needed
remedies and to secure impunity for abuses which have become entrenched
behind them, the aforesaid constitutional provisions have incurred
criticism and censure from various sections, and many attempts have been
made by State Legislatures, acting at the bidding of those who profess
to control the votes of working men, to disregard or evade the
restrictions. These attempts are usually defeated by the action of the
Courts, whence it happens that both the Federal Constitution and the
functions of the Judiciary are often attacked in the country which was
so extravagantly proud of both institutions half a century ago. This
strife between the Bench as the defender of old-fashioned doctrines
(embodied in the provisions of a Rigid Constitution (Federal or State))
and a State Legislature acting at the bidding of a large section of the
voters is a remarkable feature of contemporary America.
The significance of this change in the tendency of opinion is enhanced
when we find that a similar change has been operative in the opposite
camp. The very considerations which have made odious to some American
reformers those restrictions on popular power, behind which the great
corporations and the so-called ‘Trusts’ (and capitalistic interests
generally) have entrenched themselves, have led not a few in England to
applaud the same restrictions as invaluable safeguards to property.
Realizing, a little late in the day, that political power has in England
passed from the Few to the Many, fearing the use which the Many may make
of it, and alarmed by the precedents which land legislation in Ireland
has set, they are anxious to tie down the British Legislature, while yet
there is time, by provisions which shall prevent interference with a
man’s control over what he calls his own, shall restrict the taking of
private property for public uses, shall secure complete liberty of
contracting, and forbid interference with contracts already made. Others
in England, in their desire to save political institutions which they
think in danger, propose to arrest any sudden popular action by placing
those institutions in a class by themselves, out of the reach of the
regular action of Parliament. In other words, the establishment in
Britain of a species of Rigid Constitution has begun to be advocated,
and advocated by the persons least inclined to trust democracy. ‘Imagine
a country’—so they argue—‘with immense accumulated wealth, and a great
inequality of fortunes, a country which rules a vast and distant Empire,
a country which depends for her prosperity upon manufactures liable to
be injured by bad legislation, and upon a commerce liable to be
imperilled by unskilful diplomacy, and suppose that such a country
should admit to power a great mass of new and untrained voters, to whose
cupidity demagogues will appeal, and upon whose ignorance charlatans
will practise. Will not such a country need something better for her
security than a complicated and delicately-poised Constitution resting
largely on mere tradition, a Constitution which can at any moment be
fundamentally altered by a majority, acting in a revolutionary transient
spirit, yet in a perfectly legal way? Ought not such a country to place
at least the foundations of her system and the vital principles of her
government out of the reach of an irresponsible parliamentary majority,
making the procedure for altering them so slow and so difficult that
there will be time for the conservative forces to rally to their defence
before any fatal changes can be carried through?’
I refer to these arguments, which were frequently heard in England
during some years after the extension of the suffrage in 1884[89], with
no intention of discussing their soundness, for that belongs to
politics, but solely for the sake of illustrating how different are the
aspects which the same institution may come to wear. A century ago
revolutionists were the apostles, conservatives the enemies, of Rigid
Constitutions. Even forty years ago it was the Flexibility of the
historical British Constitution that was its glory in the eyes of
admirers of the British system, its Rigidity that was the glory of the
American Constitution in the eyes of fervent democrats.
-----
Footnote 89:
They are much less heard now (1900), partly because the public mind is
occupied with matters of a different order, partly because the
political party which professes to be opposed to innovation has
latterly commanded a large majority in the British Legislature.
-----
XV. THE FUTURE OF THE FLEXIBLE AND RIGID TYPES.
A few concluding reflections may be devoted to the probable future of
the two types that have been occupying our minds. Are both likely to
survive? or if not, which of the two will prevail and outlast the other?
Two reasons suggest themselves for predicting the prevalence of the
Rigid type. One is that no new Flexible Constitutions have been born
into the world for many years past, unless we refer to this class those
of some of the British self-governing Colonies[90]. The other is that no
country now possessing a Rigid Constitution seems likely to change it
for a Flexible one. The footsteps are all the other way. Flexible
Constitutions have been turned into Rigid ones. No Rigid one has become
Flexible[91]. Even those who complain of the undue conservatism of the
American Constitution do not propose to abolish that Constitution
altogether, nor to place it at the mercy of Congress, but merely to
expunge parts of it, though no doubt parts which (such as the powers of
the Judiciary) have been vital to its working.
-----
Footnote 90:
The British self-governing Colonies (except the two great federations,
see ante, pp. 198-9) have constitutions which may be changed in all or
nearly all points by their respective legislatures, but they are not
independent States, and the power of the legislatures to alter the
constitutions is therefore not complete.
Footnote 91:
The Constitution of Italy, already referred to, is scarcely an
exception.
-----
Against these two arguments may be set the fact that popular power has
in most countries made great advances, and does not need the protection
of an instrument controlling the legislature and the executive, which
are already only too eager to bend to every breeze of popular opinion.
If we lived in a time of small States, as the ancients did, the people
would themselves legislate in primary assemblies. Why then, it may be
asked, should they care to limit the powers of legislatures which are
completely at their bidding? The old reasons for holding legislatures
and executives in check have disappeared. Why should the people, safe
and self-confident, impose a check on themselves? In this there may be
some truth. But it must be remembered that since modern States are
larger than those of former times, and tend to grow larger by the
absorption of the small ones, legislatures are necessary, for business
could not be carried on by primary popular assemblies, even with the aid
of ‘plébiscites.’ Now legislatures are nowhere rising in the respect and
confidence of the people, and it is therefore improbable that any nation
which has a documentary Constitution, holding its legislature in
subjection, will abolish it for the benefit of the legislature, although
it may wish to do more and more of its legislation by the direct action
of the people, as it does in Switzerland and in some of the States of
the American Union. On the whole, therefore, it seems probable that
Rigid Constitutions will survive in countries where they already exist.
Two other questions remain. Will existing Flexible Constitutions remain?
Are such new States as may arise likely to adopt Constitutions of the
Rigid or of the Flexible type?
An inquiry whether countries which, like Hungary and Britain, now live
under ancient Flexible Constitutions will exchange them for new
documentary ones would resolve itself into a general study of the
political prospects of those countries. All that can be said, apart from
such a study, is that our age shows no such general tendency to change
in this respect as did the revolutionary and post-revolutionary era of
the first sixty years of the nineteenth century. Still, a few lines may
be given to considering whether any such alteration of form is likely to
pass on the Constitution which has long had the unquestioned
pre-eminence in age and honour, that, namely, of the United Kingdom,
which is really the ancient Constitution of England so expanded as to
include Scotland and Ireland.
So far as internal causes and forces are concerned, this seems
improbable. The people are not likely, despite the alarms felt and the
advice tendered by the uneasy persons to whom reference has already been
made, to part with the free play and elastic power of their historical
Cabinet and Parliamentary system. England has never yet made any
constitutional change either on grounds of theory or from a fear of
evils that might arise in the future. All the modifications of the frame
of government have been gradual, and induced by actually urgent needs.
But there is another set of causes and forces at work which may, as some
think, affect the question. It has already been noted that Rigid
Constitutions have arisen where States originally independent or
semi-independent have formed Confederations. These States, finding the
kind of connexion which treaties had created insufficient for their
needs, have united themselves into one Federal State, and expressed
their new and closer relation in the form of a documentary Constitution.
Such a Constitution has invariably been raised above the legislature it
was creating, because the States which were uniting wished to guard
jealously such autonomy as they respectively retained, and would not
leave those rights at the mercy of the legislature. This happened in the
United States in 1787-9, in Switzerland after the fall of Napoleon, in
Germany when the North German Confederation and German Empire were
created in 1866 and 1870-71. It has happened also in Canada and in
Australia.
Two proposals of a federalizing nature have recently been made regarding
the United Kingdom, one to split it up into a Federation of four States,
the other to make it a member of a large Federation. Neither seems
likely to be carried out at present, but both are worth mentioning,
because they illustrate the occasions on which, and methods by which,
constitutions may be transformed. The United Kingdom stands to its
self-governing Colonies in what is practically a permanent alliance as
regards all foreign relations, these relations being managed by the
mother country, with complete local legislative and administrative
autonomy both for each Colony and for the mother country[92]. Many think
that this alliance is not a satisfactory, and cannot well be a
permanent, form of connexion, because at present almost the whole
burden—and it is a heavy one—of naval and military defence falls upon
Britain, while the Colonies have no share in the control of foreign
relations, and may find themselves engaged in a war, or bound by a
treaty, regarding which they have not been consulted. Thus the idea has
grown up that some sort of confederation ought to be established, in
which there would be a Federal Assembly, containing representatives of
the (at present seven) component States[93], and controlling those
matters, such as foreign relations and a system of military and naval
armaments, which would be common to the whole body. If this idea were
ever to take practical shape, it would probably be carried out by a
statute establishing a new Constitution for the desired Confederation,
and creating the Federal Assembly. Such a statute would be passed by the
Parliament of the United Kingdom, and (being expressed to be operative
over the whole Empire) would have full legal effect for the Colonies as
well as for the mother country. Now if such a statute assigned to the
Federal Assembly certain specified matters, as for instance the control
of imperial defence and expenditure or (let us say) legislation
regarding merchant shipping and copyright, taking them away from the
present and future British Parliament as well as from the parliaments of
the several Colonies, and therewith debarring the British Parliament
from recalling or varying the grant except by the consent of the several
Colonies (or perhaps of the Federal Assembly itself), it is clear that
the now unlimited powers of the British Parliament would have been
reduced. A part of the future British Constitution would have been
placed beyond its control: and to that extent the British Constitution
would have ceased to be a Flexible one within the terms of the
definition already given[94]. Parliament would not be fully sovereign;
and if either the British or a Colonial Parliament passed laws
inconsistent with statutes passed by the Federal Assembly in matters
assigned to the latter, the Courts would have to hold the transgressing
laws invalid.
-----
Footnote 92:
This autonomy is, however, not legally complete as regards the
Colonies, for the mother country may, though she rarely does, disallow
colonial legislation. In Canada the Dominion Legislature cannot affect
the rights of the several Provinces, the power to do so remaining with
the Imperial Parliament which passed the Confederation Act of 1867. So
too under the Constitution of the Australian Commonwealth the rights
of each colony are protected by the instrument of federation.
Footnote 93:
Viz. the United Kingdom, the two great Colonial Federations (Canada
and Australia), and four comparatively small self-governing Colonies,
viz. New Zealand, Cape Colony, Natal, and Newfoundland.
Footnote 94:
It may of course be observed (see p. 207, ante) that the British
Parliament, while it continues to be elected as now, may be unable to
divest itself of its general power of legislating for the whole
Empire, and might therefore repeal the Act by which it had resigned
certain matters to the Federal Assembly and resume them for itself.
This is one of those _apices iuris_ of which the Romans say _non sunt
iura_; and in point of fact no Parliament can be supposed capable of
the breach of faith which such a repeal would involve. The supposed
legal difficulty might, however, be avoided by some such expedient as
that previously suggested.
-----
Doubtless, if such a Federal Constitution were established, a Supreme
Court of Appeal on which some colonial judges should sit would be
thought essential to it, and questions arising under the Federation Act
(as to the extent of the powers of the Federal Assembly and otherwise)
would go before it, sometimes in the first instance, sometimes by way of
appeal from inferior Courts.
The other proposal is to turn the United Kingdom itself into a
Federation by erecting England, Scotland, Ireland, and Wales into four
States, each with a local legislature and ministry controlling local
affairs, while retaining the Imperial Parliament as a Central or Federal
Legislature for such common affairs as belong in the United States to
Congress, and in Canada to the Dominion Parliament, and in Australia to
the Commonwealth Parliament. If such a scheme provided, as it probably
would provide, for an exclusive assignment to the local legislatures of
local affairs, so as to debar the Imperial Parliament from interfering
therewith, it would destroy the present Flexible British Constitution
and substitute a Rigid one for it. Care would have to be taken to use
proper legal means of extinguishing the general sovereign authority of
the present Parliament, as for instance by directing the elections for
the new Federal Legislature to be held in such a way as to effect a
breach of continuity between it and the old Imperial Parliament, so that
the latter should absolutely cease and determine when the new
Constitution came into force. Upon this scheme also it would be for the
Courts of Law to determine whether in any given case either the Federal
or one of the Local Legislatures had exceeded its powers.
Some persons have proposed to combine both these proposals so as to make
the four parts of the United Kingdom each return members, along with the
Colonies, to a Pan-Britannic Federal Legislature, and to place the local
legislatures of Scotland, for instance, or Wales, in a line with those
of the Australian Commonwealth or New Zealand. On this plan also—a
highly inconvenient one—the British Constitution would become Rigid.
The difficulties, both legal and practical, with which these proposals,
taken either separately or in conjunction, are surrounded, are greater
than those who advocate them have as yet generally perceived.
XVI. ARE NEW CONSTITUTIONS LIKELY TO ARISE?
The remaining question, also somewhat speculative, relates to the
prospects the future holds out to us of seeing new States with new
Constitutions arise.
New States may arise in one of two ways, either by their establishment
in new countries where settled and civilized government has been
hitherto unknown, or by the breaking up of existing States into smaller
ones, fragments of the old.
The opportunities for the former process have now been sadly curtailed
through the recent appropriation by a few great civilized States of some
two-thirds of the surface of the globe outside Europe. North America is
in the hands of three such States. Central and South America, though the
States are all weak and most of them small in population, are so far
occupied that no space is left. The last chance disappeared when the
Argentine Republic asserted a claim to Patagonia, where it would have
been better that some North European race should have developed a new
colony, as the Welsh settlers were doing on a small scale. Australia is
occupied. Asia, excluding China and Japan in the East, and the two dying
Musulman powers in the West, is virtually partitioned between Britain
and Russia, with France holding a bit of the south-east corner. So
Africa has now been (with trifling exceptions) divided between five
European Powers (Portugal, England, France, Germany, Italy). Thus there
is hardly a spot of earth left on which a new independent community can
establish itself, as the Greeks founded a multitude of new commonwealths
in the eighth and seventh centuries B.C., and as the Teutonic invaders
founded kingdoms during the dissolution of the Roman Empire.