« ПредыдущаяПродолжить »
Current Political Interpretations. 5
institutions not easily or properly transferable from one country to another.
These remarks suffice to indicate the real complexity of the problem with which an inquiry into the true nature of a political constitution has to deal. The subjects of investigation are not only, nor mainly, lasting political institutions patent to the eyes of all men, and admitting of being accurately described and circumscribed, nor even legislative enactments clearly written and publicly acknowledged; but rather they concern the current practical interpretation which happens at a given time to be placed on ancient or modern institutions and laws, and the finer modifications of these institutions and laws, which in fact, though not, perhaps, in appearance, impart to them their real constitutional influence. In this way the personal character of a sovereign during a long reign, the dominance of a special school of statesmen, and even the more ephemeral tastes and prejudices of the bulk of the population, may alter the character and efficacy of institutions otherwise the most clearly marked in their general spirit and tendency.
Thus there are many sources from which a political constitution may and must be known, besides the more familiar ones of clearly-ascertained laws and institutions. The utterances of eminent and responsible statesmen, either not contradicted, or contradicted only to prevail more signally after debate: judicial interpretations formally placed on legislative documents of constitutional import: executive acts approved, or not finally condemned, by the Legislature: practices in derogation of written law and confessed constitutional principle, which, by being long habitual, have successfully occupied territory on which they originally encroached: and, finally, the less easily calculable and noticeable changes in public sentiment which, in proportion as they are fixed and durable, supersede all laws whether written or unwritten: these are all among the essential elements of every exhaustive constitutional inquiry. This is a further reason for making such an inquiry extend over some length of time not quite inconsiderable.
These observations lead to a remark closely akin to them. In every political constitution there are to be found side by side, and almost inextricably intermingled, both legal and what may be called 'moral' element*. It is in the discrimination of these elements, and the appreciation of the exact relation subsisting between them, that the main difficulty of the inquiry consists. The moral elements, which are constituted out of the current or past sentiments and personal proclivities of the people, of individual statesmen, of corporate legislative bodies, of kings, queens, and executive officials generally —while they undoubtedly tend to alter, or even to build up the structure of the Constitution—are as fugitive and difficult to grasp as they can well be. Nevertheless, such sentiments are far other than the mere casual freaks or caprices of the hour, which may chance to determine, under any Constitution whatever, whether the actual Government of the day shall be good or bad, honest or dishonest, selfish or (in the widest sense) patriotic and humane. The sentiments which moidd the framework of the Constitution must possess a stability and duration which tend to impress upon those who share them a permanent type which is called 'character.' They change, no doubt, in the course of time, and sometimes with startling suddenPermanent National Principles. 7
ness; but the change is seldom fickle and unaccountable, and can usually be assigned to known and definite causes. It is not too much to say that the possibility of existence for any lasting political constitution, and certainly for one of the highest order, depends mainly on the capacity of the people, and of their actual governors, for entertaining throughout a sufficiently long space of time definite, rational, comprehensive, and stable political and moral sentiments in respect of the structure, working, and general aims of the Constitution. France and the United States are two examples close at hand, and it is not necessary to apply them in detail. It is through the presence of such sentiments hitherto in England that the abstract theory of the English Constitution has not led to practical anomalies of a most perplexing kind. It is through their existence that the English Cabinet has gradually attained its cohesiveness and authority; that a deadlock of divergent opinion between the two Houses of Parliament is of the rarest occurrence and the briefest duration; that a veto on the part of the Crown is practically obsolete; that the self-assumed privileges of the two Houses of Parliament have been supported even against the express decision of the highest Courts of Justice; and that the respective functions of the several Houses are progressively marked out by friendly agreement, without unseemly rivalry on the one hand or treachery to the public welfare on the other.
It is plain, then, that if the outer lineaments of a political constitution be written down ever so clearly aDd fully—as in the case of the United States and of most of the countries which have recently followed the American and English Constitutions as joint models— the great mass of matter which really determines the substance and working, if not the form, of the Constitution still remains unwritten and incapable of being written. A forgetfulness of this fact often leads to an undue confidence in written Constitutions, and an undue diffidence in those which are unwritten.
These remarks are not here introduced in order to discourage at the outset any attempts to fix rigidly, or even ascertain with moderate precision, the true nature and bearings at any moment of a given Constitution. Their purpose rather is, to point out the only modes in which the highest attainable accuracy can be reached; and, by determining at once what are the matters which are not susceptible of verbal circumscription, to make all the more manifest those matters which are. The true difficulty of course is in drawing the line between the two. But this difficulty is less than it might appear, and by use of a proper method can have its real magnitude considerably reduced. It must be remembered that all truly constitutional facts (institutions violently imposed by a foreign invader and not yet assimilated, as well as inchoate experimental legislation, being of course left out of account ) owe their origin to one and the same source. This source is the latent character and possibilities of the mass of the people as a whole. Hence, the first and most durable expression of this character will be sought for in those institutions—however they have taken their rise—which for hundreds of years are never violated except for a moment; or in those conspicuous constitutional documents, the very name of which is popularly cherished as a precious birthright, and which, originating in hardly-effected compromises or arrangements between representative parties in the State, are not only Acts of Parliament and Judicial Decisions. 9
thenceforth unassailable in fact, but are treated as unassailable in every constitutional argument. The further expression of this popular character is to be found in those distinct legislative acts, proceeding from assemblies really or professedly representative, which purport to define the limits of some admitted constitutional usage, or apply such usages to the novel exigencies of an increasingly complicated state of society. The Reform Acts, the Acts for the prevention and easy detection of Bribery, and the Ballot Act, as well as all Acts for the amendment of Local and Municipal Government, are examples of this class. Less distinct, but quite as real, modifications of the Constitution proceeding from the same cause (that is, broad popular assent or desire) are to be found in progressive changes in the acknowledged limitations of the Royal Prerogative. This prerogative, which will be subjected to a closer analysis later on, has always defied circumscription by exact written language, though a comparison of the decisions of Courts of Justice might suffice to throw into a tolerably clear shape the nature and limits of that prerogative at any given moment, so far, and so far only, as disputed questions relating to the prerogative happen to have been matters of judicial controversy. When all these sources of the existing Constitution have been examined, and the results clearly tabulated, it will be found that there is an important residuum, which no reference to consecrated usage, judicial decisions, or written documents of any sort, public or private, can account for. Yet the existence of this so-called residuum is not only undoubted as a fact, but may be for the moment the most portentous and prolific of all facts. It is of little use to teach in every primer, and