Chapter 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.

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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.

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