Chapter 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.