Constitutionalism

ANCIENT AND MODERN

CHARLES HOWARD McILWAIN

Eaton Professor of the Science of Government, Emeritus, in Harvard University

REVISED EDITION

GREAT SEAL BOOKS

A Division of Cornell University Press

ITHACA. NEW YORK

Copyright 1947 Cornell University

FIRST EDITION, 1940 REVISED EDITION, 1947

CORNELL UNIVERSITY PRESS

First printing for Great Seal Books, 1958

PRINTED IN THE UNITED STATES OF AMERICA

To the members of the Telluride Association of Cornell University in lasting remembrance of their friendliness and hospitality.

IN ITS ORIGINAL FORM this book consists of six lectures which the author delivered at Cornell University in the academic year 1938-39, namely, the MESSENGER LECTURES ON THE EVOLUTION OF CIVILIZATION. That series was founded and its title was prescribed by the late Hiram J. Messenger, B. Litt., Ph.D., of Hartford, Connecticut, who directed in his will that a portion of his estate be given to Cornell University and used to provide annually "a course or courses of lectures on the evolution of civilization, for the special purpose of raising the moral standard of our political, business, and social life."

Preface

THIS VOLUME, it is hardly necessary to say, does not pretend to be a comprehensive account of the growth of constitutionalism. In the course of a few lectures nothing could be attempted beyond the tracing of a very limited number of salient principles, and even these could be dealt with only for those countries where their development is most obvious and most directly related to the political problems facing us here and now. The history of constitutionalism remains to be written.

To the committee in charge of the Messenger Lectures I wish to express my deep appreciation of the honor and the opportunity of presenting this subject in this distinguished series, and to the Cornell University Press and Mr. Wood-ford Patterson its Director my thanks for valued advice and assistance in the preparation of the manuscript of these lectures for the press.

C. H. McILVAIN

Belmont, Massachusetts
March 2, 1940

In this revised edition many additions have been made in the notes and an appendix has been added further to justify or to illustrate some of the statements in the text.

C. H. M.

Princeton, New Jersey

May, 1947

Contents

CHAPTER I Some Modern Definitions of Constitutionalism PAGE 1

CHAPTER II The Ancient Conception of a Constitution PAGE 23

CHAPTER III The Constitutionalism of Rome and Its Influence PAGE 41

CHAPTER IV Constitutionalism in the Middle Ages PAGE 67

CHAPTER V The Transition from Medieval to Modern PAGE 93

CHAPTER VI Modern Constitutionalism and Its Problems PAGE 123

Notes PAGE 149

Appendix PAGE 170

CHAPTER I

Some Modern Definitions of Constitutionalism

THE TIME seems to be propitious for an examination of the general principle of constitutionalism — our own Anglo-Saxon brand of it in particular — and an examination which should include some consideration of the successive stages in its development. For perhaps never in its long history has the principle of constitutionalism been so questioned as it is questioned today, never has the attack upon it been so determined or so threatening as it is just now. The world is trembling in the balance between the orderly procedure of law and the processes of force which seem so much more quick and effective. We must make our choice between these two, and it must be made in the very near future. If we are to make that choice intelligently it would seem reasonable, whether in the end we decide for law or for force, that we should retrace the history of our constitutionalism — the history of force is plain enough — should try to estimate its past achievements, and should consider the nature and effects of the forces which have been arrayed against it. This I propose to try briefly to do and as dispassionately as I can, though it is only fair that I should frankly confess at the outset that my own personal convictions are overwhelmingly on the side of law and against force.

In 1792 Arthur Young mentions with contempt the French notion of a constitution, which, he says, "is a new term they have adopted; and which they use as if a constitution was a pudding to be made by a receipt."¹ To Thomas Paine, writing at the same time, the recent American written constitutions are "to liberty, what a grammar is to language." In another place, speaking of constitutions in general, he says: "A constitution is not the act of a government, but of a people constituting a government, and a government without a constitution is power without right." "A constitution is a thing antecedent to a government; and a government is only the creature of a constitution." It seems probable that Paine means by "constitution" nothing less than the written constitutions of America or France. For, he says, "the continual use of the word 'constitution' in the English parliament shows there is none; and that the whole is merely a form of government without a constitution, and constituting itself with what power it pleases." "The act by which the English parliament empowered itself to sit for seven years, shews there is no constitution in England. It might, by the same authority have sate any greater number of years, or for life."²

For Arthur Young, a constitution in this sense of a "written" constitution is "a new term"; for Thomas Paine it seems to be the only kind of constitution worthy of the name. Such "puddings," "made by a receipt," were to Edmund Burke apparently as repulsive as to Arthur Young. He says little or nothing about the new American constitutions, but in his opinion nothing could be worse than the French one. "What in the result is likely to produce evil, is politically false," he says; and "that which is productive of good, politically true."³ Certainly, in his view, nothing but evil had come or could come from "that monstrous thing, which, by the courtesy of France, they call a constitution."⁴

These statements express very clearly the contrast between the new conception of the conscious formulation by a people of its fundamental law, the new definition of "constitution"; and the older traditional view in which the word was applied only to the substantive principles to be deduced from a nation's actual institutions and their development. The older view was probably never better indicated than by Bolingbroke, when he said in 1733:

By constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed. ... We call this a good government, when ... the whole administration of public affairs is wisely pursued, and with a strict conformity to the principles and objects of the constitution.⁵

One noteworthy difference between Paine's conception and Bolingbroke's is that for the former a governmental act contrary to the constitution is an act of "power without right"; for the latter it only warrants us in saying that that government is not a good one.

Bolingbroke in fact is only restating views as old as the Politicus of Plato when he says that governments may be compared and estimated by their conformity to reason, and that a nation's actual customs and laws are probably the safest actual criterion of what that reason is. If a government fails so to conform, it is a bad government, but he does not say it is without right. He does not imply, as Paine does, that it may be disobeyed, except by way of revolution. It is curious that Bolingbroke gives the same illustration as Paine of what we might call an "unconstitutional" enactment, the English Septennial Act of 1716. That statute Paine considered a conclusive proof that "there is no constitution in England." Bolingbroke's remarks about the same statute are interesting both for what he says and for what he does not say:

If it had been foretold to those patriots at the revolution, who remembered long parliaments, who still felt the smart of them, who struggled hard for annual, and obtained with much difficulty, at the end of five or six years, triennial parliaments, that a time would come when even the term of triennial parliaments would be deemed too short, and a parliament chosen for three years would choose itself for four more, and entail septennial parliaments on the nation; that this would happen, and the fruits of their honest labors be lost, in little more than twenty years; and that it would be brought about, whilst our government continued on the foundations they had then so newly laid: if all this had been foretold at the time I mention, it would have appeared improbable and monstrous to the friends of the revolution. Yet it hath happened; and in less than twenty years, it is grown, or is growing, familiar to us.⁶

When Burke appealed from the new to the old Whigs in 1791 it was the conservatism of 1689 to which he would have returned, in place of the more radical views of Fox. When Bolingbroke in 1733 says that the Septennial Act would have seemed "monstrous" to the Whigs of the Revolution, it is in reaction against the arbitrariness of the growing notion of the omnipotence of parliament. To the one the new Whigs had moved too far toward the left, as we should say; to the other they were already moving too far toward the very absolutism their predecessors had fought against. Bolingbroke's statement is interesting in more ways than one. He offers no legal remedy for the abuse of which he complains, but he does see, as some modern historians have not seen, that between the Whig doctrine of 1689 and that of the reign of George III, or even of George I, a great gulf yawns. The opponents of James II had declared that the throne was vacant only by virtue of the fact that their voice was assumed to be the voice of the nation. In 1766 Lord Chancellor Northington said in course of the debate on the repeal of the Stamp Act: "Every government can arbitrarily impose laws on all its subjects; there must be a supreme dominion in every state; whether monarchical, aristocratical, democratical, or mixed. And all the subjects of each state are bound by the laws made by government."⁷

In 1791 Burke, though opposing the extreme doctrines of the radicals, expressly reiterated his earlier belief that the Americans in their rebellion against England had stood "in the same relation to England, as England did to King James the second, in 1688."⁸

Illustrations of the changing conceptions of sovereignty and of the constitution could be multiplied indefinitely from the materials of the seventeenth and eighteenth centuries. In contrasting the "monstrous" theory of the Septennial Act with that of the original Whig instigators of the Revolution, Bolingbroke implies that the latter, in the Convention Parliament, were acting not as a body with inherent, arbitrary, sovereign authority; but merely as the voice of the whole people. In the Whig pamphlets of the revolutionary period there is a good deal of evidence to confirm this view. The Lords in the Convention Parliament had called that assembly "a full and free Representative of this Nation"⁹ and there were some who recognized, on Locke's principles, that it was a purely extra-legal and revolutionary body whose acts were not legislative but constituent. In one of the ablest of the pamphlets of the time¹⁰ it is recognized that there is no adequate remedy in law for the abuses complained of, because many of James's most oppressive acts had been strictly legal. "This I think may easily be granted," the author says,

if it be consider'd, That the present Laws and Constitutions of England are such as do undoubtedly give the King a Power to make the Judg, and to the Judg a Power to pronounce the law. What he does judicially affirm, is Law, and becomes from thenceforth the strongest Precedent; the last Judgment being always esteem'd the surest and best Rule to go by. Now the King in both these Transactions, neither made or turn'd out any Judges, but in such Methods that former Judges had pronounc'd Lawful; nor did he do afterwards any thing either in the case of Magdalen College, or in the dispensing Power, but with the Opinion and Concurrence of his Judges, being the Method that our Establishment and Laws in such Cases do direct.

"No, no," he exclaims,

Tho our King was misguided, and our Judges were corrupt, yet it is not at their doors we must lay our Misfortunes, but to the weakness of our Government, which gives a Loose to these Inconveniencies, and which pins the Justice of the Nation on the Frailties of a single Man in so arbitrary a manner.

"If," he concludes,

the Departure of the King amounts to such a Desertion as dissolves the Government, then the Power must necessarily revert and vest in the People, who may erect a new one, either according to the old Model, if they like it so well, or any other that they like and approve of better.

The same idea was expressed by another writer¹¹ when he said:

These Conventions then of the two Kingdoms are Representatives of the Body Politick of the respective Kingdoms, such as might have been before these Bodies Politick enter'd into a Rectoral Contract with the first of the Kings of the Race that now reigns; and they are no Judicial or Authoritative Judicatures, and I suppose will claim no Power to make Laws, to judg persons, or to impose Taxes.

In due course, like the Convention Parliament of 1660, this Convention was declared to be a parliament in words copied from the similar act at the Restoration; but in thus choosing the "old Model" instead of a new, there is no indication that the representatives of the "Body Politick" ever actually conferred, or ever thought of conferring on themselves as the new parliament, any legal authority not enjoyed by prerevolutionary parliaments. It will be necessary later to show that the authority of these earlier parliaments had never been an arbitrary one.

If then Bolingbroke is right in what he says of the Septennial Act, if that statute would have seemed nothing less than "monstrous" to the revolutionists of 1688, it seems clear that to those revolutionists the dictum of Northington and Mansfield in 1766, so strenuously opposed by Camden and the Americans at the time, that "every government can arbitrarily impose laws on all its subjects," would have been tenfold more monstrous. In fact, on the basis of this and other evidence, it seems no exaggeration to say that the Whig theory of the state after 1760 is hardly to be distinguished from the principles of James II which had brought on the Revolution of 1688. In one, as in the other, the government assumed authority to impose laws arbitrarily. The only difference lay in the fact that in the one case this arbitrary government was under control of an unreformed parliament and that in the other it was dominated by the will of a despotic king. Even the conservative Burke was candid enough as late as 1791 to admit that Englishmen of North America who in 1775 rebelled against such an arbitrary rule "stood in the same relation to England as England did to King James the second in 1688." If the principles of 1688 had persisted unchanged, one might well doubt whether there would ever have been an American Revolution.

Against the principles of 1766 a revolt was as nearly inevitable in America as the Revolution of 1688 had been in England. Consideration of these changes brings up the nice question whether the Americans were legally or constitutionally warranted in resisting this "monstrous" doctrine just because it was grown or was growing "familiar" to Englishmen in England by 1733 and afterward — though not necessarily in America. It is a very nice question indeed, and most recent American historians of our Revolution have apparently refused to follow me in an inclination — which, nevertheless, I still feel — to prefer the contention of Camden and the Americans, even on its strictly legal side, to that of Northington and Mansfield. Viewed from the more general standpoint of politics rather than of law, this contention has been less questioned, and there is almost a consensus that it undoubtedly justified political revolution even if not legal resistance. It is with this political aspect of the question that we are immediately concerned here, for it was these political developments which lay behind and beneath the changing conception of what any constitution was or should be. Paine, in saying that a constitution must always be antecedent to any rightful government, was laying down a political maxim, not a rule of English law.

And whether we subscribe or not to the characterization of Thomas Paine by a former President of the United States as "a dirty little atheist," in which every single item seems to be inaccurate, we must, I think, at least agree that the analysis Paine made of the early American constitution was remarkably acute. The significant points in that analysis are these:

That there is a fundamental difference between a people's government and that people's constitution, whether the government happens to be entrusted to a king or to a representative assembly.

That this constitution is "antecedent" to the government.

That it defines the authority which the people commits to its government, and in so doing thereby limits it.

That any exercise of authority beyond these limits by any government is an exercise of "power without right."

That in any state in which the distinction is not actually observed between the constitution and the government there is in reality no constitution, because the will of the government has no check upon it, and that state is in fact a despotism.

One thing alone Paine fails to make fully clear. If a government exercises some "power without right," it seems to be necessarily implied that the people have a corresponding right to resist. But is this a legal or is it only a political right? Is such resistance a legalized rebellion or merely an extralegal revolution? Or, further, is it possible to incorporate in the framework of the state itself some provision or institution by which a governmental act or command ultra vires may be declared to be such, and subjects therefore exempted from its operation and released from any legal obligation to observe or obey it? In short, can government be limited legally and effectively by any method short of force? To these questions Paine gives no clear answer. It might be assumed that forcible resistance to power without right must itself be legal and not revolutionary; but in every case there seems no recourse except to force of some kind.

The one conspicuous element lacking in Paine's construction therefore seems to be the element of judicial review. Writing when he did, and as he did, to justify an actual rebellion, it is perhaps not strange that he was thinking primarily of politics rather than of law, that the "rights" he had in mind were the rights of man rather than the rights of the citizen, or that the sanction for these rights should be extralegal action rather than any constitutional check. Paine, like many idealists in a hurry, was probably impatient of the slowness of legal remedies for existing abuses. But others, who were more constitutionally minded than he, had begun to feel that any such remedies, to be truly effective, must ultimately have the sanction of law. Years before, Lord Camden had insisted that the principles of the law of nature must be incorporated in the British Constitution if they were to be observed, and that they actually were so incorporated. The necessary inference from such a principle as his is that the interpreters of law should be the ones to define the rights of individuals and to trace the bounds of legitimate government over them. The protection of rights became for him, and for all who thought as he did, the enforcement of "constitutional limitations." In America this had been vaguely felt long before Paine wrote his Rights of Man or even his Common Sense. In 1764 James Otis, in his Rights of the British Colonies Asserted and Proved, had said: "If the supreme legislative errs, it is informed by the supreme executive in the King's courts of law. ... This is government! This is a constitution."¹² In 1771 a remarkable instance occurs in the first of the sermons preached in the Old South Church in Boston on the anniversary of the so-called Boston Massacre. In it the preacher, the Reverend James Lovell, speaking of the king of England, said:

He is gracious, but not omniscient. He is ready to hear our appeals in their proper course: and knowing himself, though the most powerful prince on earth, yet, a subject under a divine constitution of Law; that law he will ask and receive from the twelve judges of England. These will prove that the claim of the British parliament over us is not only illegal in itself, but a downright usurpation of his prerogative as King of America.¹³

This notion of the necessity in a constitutional state for a judicial interpretation and limitation of the acts of government was at first naturally vague and instinctive; it became fully and consciously developed only at a later date.

There is, however, another important side of Paine's conception of a constitution in which it might seem to differ fundamentally from the views of other opponents of arbitrary government in his own time and before. One of Paine's most fundamental assertions is that a true constitution is always antecedent to the actual government in a state. If by the word "antecedent" he means prior in time, he seems to be asserting a principle which can be true only of constitutions "struck off" consciously by a people at a definite time, as they had lately been formulated in the thirteen colonies in America. On such an assumption the only true constitution would appear to be a "written constitution" of a type familiar enough to us since 1776, but scarcely thought of before, except perhaps for a dozen years in the middle of the seventeenth century in England. This narrow and novel definition of a constitution may have been the one Paine had in mind, and the prominence in his political thought of the notion of a definite historical compact between the government and the governed makes it the more probable.

Antecedent, however, might well have been used by other men with a far different meaning. The quotation from Bolingbroke given above makes it evident that for him the principles of the Constitution stand before all acts of any government, not because they are prior to them in time, but because they are superior in character and in binding authority; and the same was certainly true of Burke. In fact, the traditional notion of constitutionalism before the late eighteenth century was of a set of principles embodied in the institutions of a nation and neither external to these nor in existence prior to them. A constitutional state was one that had preserved an inheritance of free institutions. Precedent was the very life of these institutions as it was of all law. It was the retention of "ancient" liberties for which liberals thought they were fighting, not the creation of new ones a priori.

For some of the earlier of these "liberal conservatives" the safeguarding of necessary liberties seems to have implied the preservation intact of the customary law of the nation in its entirety. Sir Edward Coke, for example, appears to have thought that nothing less than the whole body of the English common law must be kept inviolate if the liberty of the subject was to be protected against arbitrary rule. For him the whole of the common law was in a sense "fundamental." He was still thinking in medieval fashion of law as custom, and all customary law had for him a higher sanction than "legislation" of any kind. Liberty, in his mind, was far from the abstract notion of the period of the Enlightenment. It still consisted, as in earlier ages, of specific concrete rights and of the whole body of these specific rights. He thought in terms of rights, not of right; of liberties, not of liberty; and he identified these concrete liberties with franchises.¹⁴

In one of the speeches of James I there is an interesting illustration of this habit of thought among English common lawyers, and also of the emergence of a view that we might possibly call more modern, although its roots are very old. In 1607, contrasting the Scots with the English, the king said:

Their meaning in the word of Fundamentall Lawes, you shall perceive more fully hereafter, when I handle the obiection of the difference of Lawes: For they intend thereby onely those Lawes whereby confusion is avoyded, and their Kings descent mainteined, and the heritage of the succession and Monarchic, which hath bene a Kingdome, to which I am in descent, three hundreth yeeres before CHRIST: Not meaning it as you doe, of their Common Law, for they have none, but that which is called Ius REGIS.¹⁵

The king, in this passage, is making essentially the same distinction that we now make as a matter of course between "constitutional" and other law. In restricting this constitutional law as he did to the jus regis or jus coronae he reflects his own extreme view, or monarchy by divine right, and there were undoubtedly some precedents for so restricting it, not only in Scotland but in France and England as well. But the main point is that in this view all customary law is not equally "fundamental," that some parts of it are by their inherent character more so than others, and that these parts are the ones concerned with the supreme governmental organ of the state. While these fundamentals went no further for James than the guarantee of his own royal rights, by others they might be extended and were extended to include some limitations in the interest of subjects as well. S. R. Gardiner was of opinion that the phrase "fundamental law," as a guarantee of the rights of the subject, came into use only after the ship-money trial, but there are some rather striking even if somewhat vague instances of it that antedate this by a good many years; such, for example, as the assertion of Sir James Whitelocke in 1610 that taxation without sanction of parliament "is against the natural frame and constitution of the policy of this Kingdom, which is Jus publicum regni, and so subverteth the fundamental law of the realm, and induceth a new form of state and government," as well as "against the municipal law of the land, which is Jus privatum, the law of property and of private right." ¹⁶

From the evidence of recent times, of which I have had room for only this small number of scattered illustrative cases, one or two general principles, or tendencies rather, may, I think, be legitimately deduced; and I should like to state these in somewhat brief and summary form as the basis or starting point for the survey to follow of the long historical evolution which lies behind them.

Whatever we may think of it theoretically, Paine's notion that the only true constitution is one consciously constructed, and that a nation's government is only the creature of this constitution, conforms probably more closely than any other to the actual development in the world since the opening of the nineteenth century. Whether this construction was actually prompted in the first instance by doctrinaire political philosophers, as seems largely true in France, or by actual political experience, as the history of the time appears to indicate in the revolted North American colonies of Great Britain, it is certainly true that most subsequent constitutional developments have followed the same lines. Written constitutions creating, defining, and limiting governments since then have been the general rule in almost the whole of the constitutional world. The precedent for these, first developed in North America, was naturalized in France and from there transmitted to most of the continent of Europe, from which it has spread in our own day to much of the Orient. Even the British self-governing colonies have been deeply influenced by it.

One of the curious anomalies arising out of this development is the striking exception to it furnished by England herself, the one country above all others in which limitations on government have been in more or less effective operation since medieval times. But the exception of England seems more apparent than real. The essential principles to which Burke and Camden and Otis appealed were no less constitutional because they were "unwritten"; and the true reason why England, probably the most constitutional of modern European nations, has also remained the only one whose constitution has never been embodied in a formal document, is not that she has had no constitution, as the French sometimes say, but rather that limitations on arbitrary rule have become so firmly fixed in the national tradition that no threats against them have seemed serious enough to warrant the adoption of a formal code. Since written constitutions came into vogue in the late eighteenth century, England has never experienced any of the violent changes which gave France so many successive written constitutions in the nineteenth. Yet, it might be objected, the thirteen British colonies, whose traditions were those of the mother country, did without exception adopt such written constitutions, and our federal written constitution is merely the result of them.

The answer is twofold. First, our early American written constitutions might be said with little exaggeration to consist mainly of a codification of institutions and principles long in actual force. They are far less doctrinaire or a priori than those of France or the rest of continental Europe. And, second, our independence constituted a break in continuity here requiring a written code, such as England has never known, at least since 1660. For even the Revolution of 1688, important as it was, made few structural changes that could be set forth in a formal document even if men had thought of it. The Bill of Rights of 1689, the Triennial Act of 1694, and the Act of Settlement of 1701, which embody nearly the whole of the revolution settlement which obtained the sanction of law, were enacted in the form of ordinary statutes. Nevertheless, there are indications that these enactments were at that time thought to be in some sense, or in some degree, fundamental. The language of the Triennial Act — that writs shall issue for the assembling of a new parliament "within three years at the farthest, from and after the dissolution of this present Parliament, and so from time to time forever hereafter" — certainly furnishes some ground for Bolingbroke's assertion that a revolutionary change took place between 1694 and 1716 which even the men of 1688 might have considered "monstrous." If we confine our view to Anglo-Saxon institutions, there is less difference between a "written" and a so-called "unwritten" constitution than the terms "rigid" and "flexible," made current for them by Lord Bryce, would seem to imply. England has had no such occasion, or rather no such necessity, as we in America had about 1776, to codify her fundamental constitutional principles. But such principles did exist, and still do exist, and in times of stress we hear occasional demands even for a codification of them. From 1911 to 1914 the so-called "die hards" or "last-ditchers" among the members of the House of Lords were calling for some protection for themselves stronger than their right of participation in all acts of parliament; and in 1914 a small group of unionists even proposed the revival of the so-called royal veto on legislation in the case of the Irish Home-Rule Bill, a branch of the royal prerogative which had not been exercised for some two centuries.

In 1914 a short-lived review was founded to voice these points of view, The Candid Quarterly Review. Its first number contains some remarkable statements whose gist may probably be best gathered from an extract:

But the modern doctrine is that they [the former attributes of the King] have been somehow transferred from the King to the Minister; that they exist now only in the Minister. The Minister has become the King with all the Kingly attributes; the King has become the Minister with only the Ministerial duties. The gilt coach which bears the King to Parliament contains, in fact, Nothing: the taxicab which bears the Minister to Downing Street, Everything.¹⁷

This, the writer insists, is a great usurpation. The salaried parliament, the sale of honors, the Parliament Act of 1911, and the Irish Home-Rule Bill are all parts of a corrupt conspiracy to deprive the king of his prerogative and the people of their liberty. Therefore the king should exercise his legal and fundamental right, disused for two hundred years, and veto the Home-Rule Bill. The writer implies also that the Parliament Act, in leaving to the Lords a mere power of suspension, is void for unconstitutionality.

The Great War, which ensued in a few months, drew attention away from these constitutional questions, but they might come to the top again, and are almost sure to do so when a similar issue arises. It would, in short, not be surprising if in the years to come there were further, more frequent, and more widespread demands in England for "somewhat Fundamental, somewhat like a Magna Charta, that should be standing and be unalterable" — the words of Oliver Cromwell in 1654.¹⁸ The extension of the elective franchise has been completed in England only in our own day. Most of it has occurred within the lifetime of men still living. And the political results of it are not yet fully apparent. The membership of the House of Commons, notwithstanding the successive enlargements of the electorate, is still to a great degree aristocratic, and aristocratic traditions still control and limit parliament's actions to an extent surprising to anyone who has not made a study of it. These traditions, inherited from an earlier time, still operate as inhibitions on parliamentary action almost as effective as legal prohibitions. So long as they do, the need for legal restrictions on the lawmaking organ will not be pressing, and the legal doctrine of the omnipotence of parliament is likely to remain little questioned. That doctrine is left unchallenged only because it has not yet been found to be dangerous to any class numerous enough and powerful enough successfully to oppose it.¹⁹ On the other hand, it requires little prophetic insight to note that this situation cannot be permanent. The legal doctrine of parliament's omnipotence could never have persisted even to this day in England if its edge had not been blunted by conventions whose operation has been practically as invariable as that of the law itself.

When these conventions lose their effectiveness there will be a demand for law and the conventions will either be turned into laws or disregarded altogether. We have had an instance of this in recent times. Parliamentary omnipotence thus far has met its principal obstacle in imperial matters. The doctrine was challenged in North America in the eighteenth century and the American Revolution was the result. In our own time, in the recent Statute of Westminster, we have seen the breakdown of convention in Canada and the substitution of law in its place. It is natural that these striking instances of the growing inadequacy of convention should occur in the colonial sphere, where tradition is less firmly rooted than in the mother country. In England itself the equilibrium of law and convention has often been noted, especially since Walter Bagehot called attention to it in his classical analysis of the English constitution. Most persons are familiar with Bagehot's famous remarks on the prerogative, made in 1872 in the introduction to the second edition of his English Constitution. Without recourse to parliament, by an exercise of mere prerogative, the queen, he says,

could disband the army. ... She could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every citizen in the United Kingdom, male or female, a peer; she could make every parish in the United Kingdom a "university"; she could dismiss most of the civil servants: she could pardon all offenders.

What makes impossible the more serious of these prerogative rights Bagehot thought to be impeachment. But impeachment has long been obsolete, and was so in 1872 when Bagehot wrote. It seems very doubtful whether impeachment could be successfully revived for the conviction of a minister of state involved in such transactions. The possibility of revolution would seem to be the only real deterrent, just as it was in 1688 when James II made excessive use of a legitimate discretionary power. But in matters of this sort attention has in the past been directed mainly to the crown and the prerogative. The same threat of revolution effective against the crown, however, might be brought by the people against a parliament which outraged their feelings of what was just and right. This seems less likely to occur because parliament will in time come more and more to reflect the changing social and economic views of the new classes rising to political power. What we may expect for the near future, I think, is not a revolution against parliament but a transformation of it. Already, in the short period since the election of the first Labor representative, which some of us can remember, significant omens of change have appeared.

Anyone who frequented sessions of the House of Commons at the turn of the century and sees it now when some important and keenly contested social question is under discussion will be impressed by the difference. Outwardly there seems to be little change. The House of Commons looks just as it did and, when feelings are not aroused, it acts so too. But at times it is noticeable that language is less restrained than formerly in the House. Conventions inherited from the time when government and opposition were drawn from the same social class are broken more frequently. There is a subtle difference of atmosphere. When one considers the new elements that have entered parliament, it seems surprising that this change is no greater than it is, but a change has occurred nevertheless, and it is a symptom of possible changes to come much more fundamental in character. As the restraining influence of tradition grows weaker, the danger of a tyranny of the majority comes nearer, and the time may arrive when convention must give way to law if the rights of minorities are to be respected and safeguarded as they have been in the past. A popular despotism must result if the omnipotence of parliament ever becomes in practice what it now is in law. Because it is not yet so, England is today an exception more apparent than real to the principle laid down by Thomas Paine, that in any state in which the government constitutes itself "with what power it pleases" there is in reality "merely a form of government without a constitution."

As a general principle I think we must admit the truth of Paine's dictum that "a constitution is not the act of a government but of a people constituting a government." And, if this be true, the consequence is that the forms and limits followed in this "constituting" become the embodiment of a "constitution," superior in character to the acts of any "government" it creates. If, for example, this constituent act of the people entrusts certain definite powers to their government, "enumerated powers" as we term them, it is a necessary inference that this government cannot exercise any powers not so "enumerated." All constitutional government is by definition limited government. We may not agree that these limits are necessarily "antecedent" in the sense of that term that Paine had in mind, but for everyone they must be in some sense "fundamental," and fundamental not merely because they are basic, but because they are also unalterable by ordinary legal process.

The phase in the development of these political conceptions to which I have asked your attention thus far is the latest phase in that development, what might be called the "self-conscious" phase, in which the people are thought of as creating their constitution by direct and express constituent action. But I think enough has been shown to prove that this latest phase is only the outcome of an earlier and a much longer one, in which constitutions were thought of not as a creation but as a growth; not as a national code so much as a national inheritance. Our modern tendency to identify all law with legislation has modified the notions respecting constitutional as well as private law. We no longer think of either as the medieval man did, as custom, binding because it extends backward to a time "whereof the memory of man runneth not to the contrary."

It is the long development of this earlier and less conscious phase that I am to treat in more detail, but before doing so may I point out in advance what I hope will become obvious in the historical treatment, namely, that in all its successive phases, constitutionalism has one essential quality: it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law. In modern times the growth of political responsibility has been added to this through the winning of the initiative in the discretionary matters of national policy by the people's representatives, and of that more anon; but the most ancient, the most persistent, and the most lasting of the essentials of true constitutionalism still remains what it has been almost from the beginning, the limitation of government by law. "Constitutional limitations," if not the most important part of our constitutionalism, are beyond doubt the most ancient.

CHAPTER II

The Ancient Conception of a Constitution

IN THE Oxford Dictionary, which I have long thought of as the best single textbook of the history of our peculiar institutions and ideas, several meanings of the word "constitution" are listed. It may mean the act of establishing or of ordaining, or the ordinance or regulation so established. It may mean the "make" or composition which determines the nature of anything, and may thus be applied to the body or the mind of man as well as to external objects. In the Roman Empire the word in its Latin form became the technical term for acts of legislation by the emperor, and from Roman law the Church borrowed it and applied it to ecclesiastical regulations for the whole Church or for some particular ecclesiastical province. From the Church, or possibly from the Roman lawbooks themselves, the term came back into use in the later middle ages as applicable to secular enactments of the time. In England the famous Constitutions of Clarendon of 1164 were referred to by Henry II and others as "constitutions," avitae constitutiones or leges, a recordatio vel recognitio of the relations purporting to have existed between church and state in the time of Henry's grandfather, Henry I. But in substance these were ecclesiastical provisions even though they were promulgated by secular authority, and this may account for the application to them of the word "constitutions." The word, however, is often found in a purely secular use at this time; though scarcely in any technical sense, for we find other words such as lex or edictum used interchangeably with constitutio for a secular administrative enactment.¹ As just noted, the Constitutions of Clarendon are referred to in the document itself as a "record" (recordatio) or a "finding" (recognitio). The author of the Leges Henrici Primi, who wrote early in the twelfth century, soon after the appearance of Henry I's well-known writ for the holding of the hundred and county courts, also refers to that writ as a "record."² Glanvill frequently uses the word "constitution" for a royal edict. He refers to Henry II's writ creating the remedy by grand assize as legalis ista constitutio,³ and calls the assize of novel disseisin both a recognitio and a constitutio.⁴ Bracton, writing a few years after the statute of Merton of 1236, calls one of its provisions a "new constitution,"⁵ and refers to a section of Magna Carta reissued in 1225 as constitutio libertatis.⁶ In France about the same time Beaumanoir speaks of the remedy in novel disseisin as une nouvele constitucion made by the kings.⁷

At this time, and for centuries after, "constitution" always means a particular administrative enactment much as it had meant to the Roman lawyers. The word is used to distinguish such particular enactments from consuetudo or ancient custom. It is apparently never used in our modern sense, to denote the whole legal framework of the state. It would require a very detailed examination of the legal and political writings of several centuries to enable one to say with any confidence when this modern notion of a constitution first appears. I cannot claim to have made any such examination, but I cannot recall from my reading any clear instance of it before the opening of the seventeenth century. In 1578 Pierre Grégoire of Toulouse uses the word almost in our modern sense in his De Republica, but the context seems to me to indicate a somewhat wider and more general sense of constitutio than the strictly political meaning the word "constitution" now conveys, for which Grégoire seems to use the older phrase status reipublicae.⁸ The first instance given in the Oxford Dictionary of the use of the word "constitution" for the whole legal framework of a state is a phrase of Bishop Hall's in 1610, "The Constitution of the Common-wealth of Israel," and in my first lecture I quoted some words of Sir James Whitelocke's of the same year, possibly not quite so definite but even more striking: "the natural frame and constitution of the policy of this Kingdom, which is jus publicum regni."

This use of the term "constitution" may have been new in 1610, but the idea it conveys is in reality one of the oldest, if not the very oldest, in the whole history of constitutionalism. Whitelocke's phrase which I have just given — "the natural frame and constitution of the policy [i.e., polity] of this Kingdom, which is jus publicum regni" — in reality includes two conceptions of a constitution closely connected and at times combined, but nevertheless distinct in character. One appears in Whitelocke's first words, "the natural frame of the state," and this idea seems as old as the politeia of the Greeks, which we usually translate by our word "constitution." The other conception is expressed by Whitelocke's other phrase, "jus publicum regni," the public law of the realm. The latter conception may not be as ancient as the former, but it is very old. Cicero, for example, voices it in his De Re Publica in a passage which contains the first use that I know of the word "constitution" in its accepted modern sense. In commending a mixed form of government, Cicero says, "This constitution (haec constitutio) has a great measure of equability without which men can hardly remain free for any length of time."⁹ Further on he says,

"Now that opinion of Cato becomes more certain, that the constitution of the republic (constitutionem rei publicae) is the work of no single time or of no single man."¹⁰

It is these two forms of early constitutionalism expressed by the Greek politeia and by the Latin constitutio, and their interrelations in history, that I propose to try to trace; and I shall begin with the more ancient, the politeia of the Greeks.

Of all the varied meanings of which our word "constitution" is susceptible, the Greek politeia conforms to one of the most ancient. It means above all the state as it actually is. It is a term which comprises all the innumerable characteristics which determine that state's peculiar nature, and these include its whole economic and social texture as well as matters governmental in our narrower modern sense. It is a purely descriptive term, and as inclusive in its meaning as our own use of the word "constitution" when we speak generally of a man's constitution or of the constitution of matter. As Sir Paul Vinogradoff says:

The Greeks recognized a close analogy between the organization of the State and the organism of the individual human being. They thought that the two elements of body and mind, the former guided and governed by the latter, had a parallel in two constitutive elements of the State, the rulers and the ruled.¹¹

There is nothing in the Greek language "corresponding to the Latin jus."¹² It is

characteristic of the development of Greek juridical ideas that the "law of nature," though appealed to as a philosophical explanation of existing facts, does not serve as a means for concrete juridical deductions. It was at a later stage — with the advent of Stoicism, especially in its Roman form — that the law of nature began to be considered as a source of law in the practical sense of the term.¹³ In Athens there was no consolidated constitution.¹⁴

The analogy between state organization and the human organism involved, as Mr. W. L. Newman truly says,

that which was to a Greek the central inquiry of Political Science. ... It was thus that in the view of the Greeks every constitution had an accompanying hqoV, which made itself felt in all the relations of life. Each constitutional form exercised a moulding influence on virtue; the good citizen was a different being in an oligarchy, a democracy, and an aristocracy. Each constitution embodied a scheme of life, and tended, consciously or not, to bring the lives of those living under it into harmony with its particular scheme. If the law provides that the highest offices in the State shall be purchasable or confines them to wealthy men, it inspires ipso facto a respect for wealth in the citizens.¹⁵

From the Greek political classics instances almost without number might be given of this conception of a constitution as the hqoV of a people, but I can mention only one or two. "Our whole state," Plato says in the Laws, "is an 'imitation' (mimhsiV) of the best and noblest life."¹⁶ In the Panathenaicus Isocrates says that the politeia is the "soul (yuch) of the polis" with power over it like that of the mind over the body;¹⁷ and Aristotle, in the Politics, calls it "in a sense the life of the city."¹⁸ From this conception of the nature of the constitution, in which Greeks of every philosophical party seemed to share, there followed results of great importance both theoretical and practical.

As Sir Paul Vinogradoff says, there is nothing in the Greek language which quite corresponds to the Latin word jus; and there seems to be nothing in the Greek conception of the state or of its constitution to correspond to the jus regni of Sir James Whitelocke. The Greeks made no such clear distinction as the Roman one between jus publicum and jus privatum; their politics consisted of a philosophical explanation of actual facts rather than a basis for concrete juridical deductions. Natural law, if admitted at all, became the criterion merely of the comparative excellence of a state's form of government; it never became for the Greeks as for the Romans the test of a government's legitimacy. And by the Sophists of every kind natural law was not admitted at all. "The tribe of Sophists," as Plato says in his Sophista, "is not easily caught or defined"; but the subjectivism or relativity that marked the philosophy of them all precluded even a comparison of constitutions, because it denied the existence of any values, or norms, or objective standards, which alone could warrant anyone in saying that one state's constitution was better or worse than another's. And even the great opponents of the Sophists, such as Plato and Aristotle, in their assertion of objective reality and of the possibility of man's apprehending it, although they believed in a universal law of nature, never went so far as to say that this was a coercive law. They never could have said as Cicero did, that states have no power through senate or people to free themselves from it.¹⁹ Natural law meant to them, as to the modern scientist, no more than the fact of invariability. It carried with it no notion of sanction.

One of the clearest statements of this Greek attitude toward the fundamental relations of government to law is to be found in the Politicus or Statesman of Plato, a dialogue whose central theme is the problem of "constitutionalism" — of all Plato's dialogues the one most directly concerned with the subject we have now in hand. I have long felt that this dialogue, though less fundamental, no doubt, than the Republic, has been too much neglected in our estimate of Plato's real political position and purpose; and not of his own position alone, but of the normal attitude toward constitutionalism in the Academy and the Lyceum at least, if not in Greece generally.

It was mainly with this work, rather than with the Republic, Professor Jaeger insists, that Aristotle's study of Plato's political doctrines was concerned,²⁰ and he shows conclusively throughout his remarkable book how vitally important that study was in forming the political conception which Aristotle held to the very end. "He had accepted Plato's doctrines with his whole soul," Professor Jaeger says, "and the effort to discover his own relation to them occupied all his life, and is the clue to his development."²¹

The central question discussed in the Politicus is the perennial one of the proper relation of government to law. Plato has been claimed as a fellow by some of the modern proponents of the totalitarian state, but how anyone could honestly make such a claim after he had carefully pondered the Politicus is wholly beyond my comprehension. If one should disregard Plato's plain statements of his purpose in the Republic, it is perhaps conceivable that one might distort that dialogue into a defense of actual arbitrary governments; yet the whole discussion in the Politicus plainly shows that this is not Plato's true position but the very antithesis of it.

It is true that even in the Politicus the defects of constitutional governments are clearly recognized. In fact they are probably stated with greater distinctness in this dialogue than in any other of the Platonic writings. Constitutional government, Plato admits, is to be regarded only as a "second best" (wV deuteron as compared with to prwton). But the "first" or best type of political relations, a government unhampered by law, is, he declares unequivocally, only an ideal of which actual states can never be more than an approximation, and usually not a very close approximation. Limitations of law always do hamper government; and, provided the government is a good one, there may be good things that such a government can achieve, if unrestricted, which these limitations of law render impossible of accomplishment.

The problem that Plato faces here is a practical one that is likely to persist as long as government itself. A constitutional government will always be a weak government when compared with an arbitrary one. There will be many desirable things, as well as undesirable, which are easy for a despotism but impossible elsewhere. Constitutionalism suffers from the defects inherent in its own merits. Because it cannot do some evil it is precluded from doing some good. Shall we, then, forego the good to prevent the evil, or shall we submit to the evil to secure the good? This is the fundamental practical question of all constitutionalism. It is the foremost issue in the present political world; and it is amazing, and to many of us very alarming, to consider to what insufferable barbarities nation after nation today is showing a willingness to submit, for the recompense it thinks it is getting or hopes to get from an arbitrary government. This great problem is the central one in Plato's dialogue, and Plato's answer to it cannot but interest the present-day reformer as well as the historian of constitutional development.

That answer is based on the fundamental distinction, but at the same time the very close connection, sometimes overlooked or underestimated, between the ideal on the one hand and the actual or the attainable. Plato's Republic deals with an unattainable ideal; his Politicus treats of the attainable in its relation to this, same ideal. The attainable is less perfect than the ideal, and it is the presence of legal restriction that makes it so; for law, as Plato says, is

like an obstinate and ignorant tyrant who will not allow anything to be done contrary to his appointment or any question to be asked — not even in sudden changes of circumstances, when something happens to be better than what he commanded for some one.

The law cannot comprehend exactly what is noblest or more just, or at once ordain what is best, for all. The differences of men and actions, and the endless irregular movements of human things, do not admit of any universal and simple rule. No art can lay down any rule which will last forever.

A perfectly simple principle can never be applied to a state of things which is the reverse of simple.

How familiar these objections to constitutionalism sound! Their burden is always the present insufficiency of law inherited from some "horse and buggy" era in the past. And of course no one could deny the validity of such objections. There is a practical recognition of them in the history of our equitable remedies for the deficiencies of rigid legal rules, and the entrusting to governments of a discretionary power in exceptional cases to dispense with law or to pardon a breach of it necessarily implies the admission that this law, especially if it is an ancient law, can never secure adequate justice in every particular case. The principal defect of all law is at the same time its most essential and most valuable characteristic — its generality.

It was considerations such as these that led Plato to hold that the best government theoretically or ideally is one based upon the discretion of the ruler and not upon law; and such a government conforms precisely to the meaning of our word "despotism" — in this case a perfectly benevolent despotism, of course. So he asks:

As the pilot watches over the interests of the ship, or of the crew, and preserves the lives of his fellow sailors, not by laying down rules, but by making his art a law — even so, and in the self-same way, may there not be a true form of polity created by those who are able to govern in a similar spirit, and who show a strength of art which is superior to the law?²²

From this sentence it is evident, as it is from the whole tenor of the dialogue, that the ideally best rule exists where the ruler is not limited by law but makes his art a law. But another thing is equally evident here and equally prominent throughout the Politicus, namely, that this "art" of the ruler shows "a strength of art which is superior to the law." This brings up the final and most crucial question of all. Is Plato in this dialogue insisting on the superiority of despotism over constitutionalism as a principle of practical politics, or is he trying to illustrate the very opposite? To put it more concretely, does Plato believe in the actual or possible existence of any ruler with such "strength of art" that his "art" should be the only law of the state? He evidently believes such a philosopher-king ought to rule as a despot if you could only find him. But does he believe that such an incomparable embodiment of omniscience, omnicompetence, and utter benevolence could possibly exist except in the imagination? It is interesting to note the historical tendency of peoples generally to deify their rulers once they have conceded despotic authority to them. A divine competence in a ruler is in fact the only real justification of a despotism; and where there is despotism the apotheosis of the ruler is likely sooner or later to appear in some form. It is interesting but not strange to find Cardinal Ballarmine in the sixteenth century arguing that the Church should have a despotic government because the Church is divine, while the state ought to have a limited government because the state is human. The answer to the question whether Plato was politically an absolutist or a constitutionalist depends then on the answer to another: Did Plato believe that his philosopher-king had appeared or could possibly appear in any actual state on earth? Through what seems to me a misinterpretation of the Republic, some have attributed the latter view to Plato, but the whole argument of the Politicus is against it; and I cannot agree with those who find in the Politicus inconsistency with the Republic or a contradiction of it. Like Cardinal Ballarmine, and on much the same general grounds, Plato regarded absolute government as the only celestial one and celestial government as the only one properly absolute.

A godlike ruler should rule like a god, and if a godlike man should appear among men, godlike rule would and should be gladly conceded to him. This was Aristotle's view, and he may well have got it from the teachings of Plato. But I know of nothing in all Plato's writings which indicates a belief in the actual, or even the possible, existence of a superman like this; and without such a demigod despotism becomes for Plato, not the best, but the worst of all possible governments. Between these two extremes lay his second-best state under constitutional rule. It is of little consequence that there should be one ruler, or a few or many rulers, in such a state, provided the government be limited by law; and, in the cases where it is so limited, Plato finds an approximation of the "art" of the perfect despot close enough to warrant him in speaking of monarchy, aristocracy, and a constitutional democracy as forms of government, sadly defective indeed, but true; in comparison with the three corresponding perverted forms, in all of which men totally devoid of any "strength of art" superior to the law — the only justification of despotism — have nevertheless made their own art the state's sole law.

It may seem a paradox, if not even worse, to say, as Plato does here, that actual despotisms are less closely akin to the ideal despotism than these constitutional governments which at first sight seem so much less like it. But to Plato it is not the external form of a state that differentiates it from another, but the guiding inner principle of its political life, above all the presence or absence of justice. In a constitutional government the laws under which the state is ruled are far inferior to the wisdom of the perfect ruler, chiefly on account of their rigidity; but these laws are none the less "imitations" (mimhmata) of that perfect wisdom — very faulty "copies" of the government of the ideal state. They are copies, and copies which to Plato embody a greater measure of true justice than the arbitrary will of vicious or ignorant men can ever do; and even the best of men are more or less vicious and ignorant. Law, as Aristotle says, is "intelligence without passion."²³

For the subject with which we are immediately concerned — constitutionality in its actual rather than its ideal form — the Politicus seems to disclose Plato's real opinions more clearly than his description of omniscient despotism in the unattainable ideal of the Republic. If the Politicus gives us a true picture of its author's mind, he was certainly no advocate of arbitrary government in the actual political world. In this dialogue he does not explain at length just why he thinks national custom a safer guide than the fiat of government, but he gives unmistakable evidence that he does think so. His preference for the Rechtsstaat may have been mainly pragmatic. In the Laws he notes that all other states are "on the highway to ruin,"²⁴ and appeals to that right reason "which the law affirms, and which the experience of the best of our elders has agreed to be truly right."²⁵ But whatever the grounds for it may have been, his belief in the superiority of law over will as a principle of actual government can hardly be doubted.

If then the Politicus gives a true indication of Plato's political beliefs, and if my hurried summary of it is not inaccurate, there is little comfort to be derived from him by believers in totalitarianism.

One further point alone I can stop to note about his constitutionalism. In common with Socrates and Aristotle and in opposition to the Sophists, he believed in a universal norm of political life to be apprehended through human reason or "nature," by which the various forms of polity may be judged and compared; and this norm might be roughly termed a "law of nature." But there is one striking difference between the conception of a "law of nature" as he held it — and as did apparently all his Greek contemporaries of every party — and the one later transmitted by the Stoics to Rome. The law of nature is to him no more than a basis of comparison. He thinks of this law, as he thinks of all law, merely as an intellectual standard. Law is nothing more than the uniformity of nature, and human law is likewise nothing but the common apprehension of a part of this uniformity by man. It is thus a common "yardstick" by which one form of polity may be compared on its merits with another, and even one enactment made within a state with another. The latter is the distinction between true law in the abstract (nomoV) and particular laws (nomizomena), dealt with in the Platonic dialogue Minos — Platonic whether by Plato or not. Such particular laws are good when they embody the true law and not otherwise.

But with this comparison of polities or of laws Greek constitutionalism of the classical period seems to stop. It goes no further than mere intellectual assessment or comparison. It may pronounce that a given polity or particular law is bad; it does not go on to say it is not binding. It may even say that these bad enactments are not true law at all, but it does not say they can be disregarded. As Rehm observes, the customary definition of the state was not a legal definition at all, but a political one;²⁶ the ancient theorists were concerned primarily with an "ethico-political appraisal of the relations between the state and other forms of human association," ²⁷ not with the "sovereignty" which bulks so large in all modern discussions of political relations. Aristotle's word for the supremacy in a state corresponding to our "sovereignty," to kurion, does not imply supreme constituted authority, as sovereignty does, but a supremacy in fact only.²⁸ In short, the conception of constitutionalism based on the notion of law prevailing generally in this period is of a constitution in the primitive sense noted above, of the whole nature or "composure" of a thing. Such a conception of law may warrant one in saying that a particular enactment is bad, but never that it is not legitimate. There is no room under such a conception for any distinction such as we make between a provision that is binding because constitutional and one that is void for unconstitutionality. What this amounts to is that "the law of the constitution," if we might employ such a phrase, is not coercive but only normative; and that constitutions have no sanction in our modern sense. Whatever the phrase "an unconstitutional law" might have meant for Plato or for Aristotle, if he had ever used it, it would never have meant a law void on account of unconstitutionality; and, while a "constitutional law" might conceivably have meant one concerned with the framework of the state, it could never have been a "fundamental" law in our sense of that phrase.

The difference just noted between our notion of constitutionality and the antique one is only one aspect of the difference between the modern and the ancient view of the state in general. Before the Stoics, Greeks apparently drew no clear distinction between society and the state, between the social and the civil. But institutions that are thus identical must also be coeval. Potentially at least, the state must therefore be as old as human association, there is no science of society apart from politics, and there can be no natural law older than the laws of actual states. As a consequence, the Greeks thought of the law in a state only as one part or rather as one aspect of the whole polity itself, never as something outside or apart from the state to which that polity must conform, nor even as any special provision within the state to which other laws are subordinate. If the Greeks thought of a law of nature as applying to a particular state at all, they meant by this natural law no more than that portion of a state's actual laws which in fact happens to be identical in all other states — what Aristotle in his Rhetoric called "common law" (koinoV nomoV);²⁹ they had in mind no "fundamental" principles which must invalidate a municipal law inconsistent with them; in short, they thought of law in terms of the state, not of the state in terms of law, as the Roman and the medieval man invariably did. It was only after the appearance of a notion of a higher and an older law, out of which the laws of particular states are fashioned and to which they must conform in order to be valid, that the modern conception of constitutionalism could replace the ancient one. The change, however, has come when Cicero can define a state as a bond of law (vinculum juris); for here by law he means no law of the state itself, but an antecedent law, and one antecedent in time as well as sanction. He says expressly in his De Re Publica that this law is as old as the mind of God, existing long before there were any states in the world. But more important still, he adds that no state can ever enact any binding law in derogation of this law of nature, a statement that no Greek of the fifth or fourth century B.C. could have dreamt of making, even supposing that he could have understood it. There is probably no change in the whole history of political theory more revolutionary than this, and certainly none so momentous for the future of constitutionalism. From this great difference between the ancient and the modern conception of constitutionalism some very important practical results may be traced. Since, under the older conception, the politeia, or constitution as we may call it, included not merely a jus publicum regni but the whole life of the state, two or three great practical differences between ancient and modern states seem to be logically incident to it, differences that even a slight comparison of ancient and modern constitutional history clearly discloses. First, in the ancient regime there is no remedy for an unconstitutional act short of actual revolution. Secondly, such revolution, when it occurs, is usually no mere modification of the "public law," such as Whitelocke's jus publicum regni, but a complete overturn of the state's institutions, a change in its whole way of life. It is a social as well as a merely "political" revolution in our modern narrower sense of "political." Aristotle refers to such revolutions as a dissolution of the polities in which they occur; the "constitutions" and with them the states themselves are destroyed, or rather, actually "dissolved" (luontai).³⁰ Thirdly, it is this fundamental and far-reaching character of most actual revolutions in Greece, in so many cases touching everything in the state, social, economic, and intellectual, as well as governmental; changes usually carried out by violence, proscription, ostracism, and even death, in ways very similar to the proceedings so familiar to us in parts of Europe today and with much the same underlying causes — it is this wholesale character of so many contemporary revolutions that accounts for the Greek fear of stasis and the nervous desire to risk almost anything that might prevent it. For stasis is a lack of equilibrium, a condition of disharmony in a state, which is almost sure to entail unrest and eventual revolution with all its usual horrors. Nothing less than such revolution and the constant dread of its results could have led Aristotle, for example, to advise tyrants how to prolong a type of government which he admits to be the most oppressive in the world as well as the shortest-lived; and Aristotle's attitude toward stasis indicated in the Politics is reflected in most of the political writings surviving from Aristotle's time in Greece. The Greek states were notoriously unstable, and this situation led to a desire to preserve the status quo which to us seems at times almost reactionary. The analysis that Aristotle gives of the causes of sedition is as keen as the remedies are often cynical. One has to pinch himself to realize that he is not reading from some resume of recent events in Europe when, for example, Aristotle says:

It is as little possible to create a state in any arbitrary period of time as to create it of any arbitrary population. Accordingly the great majority of states to which a number of alien colonists have been admitted at the time of their foundation, or at a later date, have been the scenes of violent sedition.³¹

Or this:

Polities generally are liable to dissolution not only from within but from without, when there is a state having an antagonistic polity near to them or distant but possessed of considerable power.³²

Or take the following summary he gives of the measures usually adopted and actually necessary to preserve a tyranny:

The practice of cutting off prominent characters and putting out of the way the high spirits in the state; the prohibition of common meals, political clubs, high culture and everything else of the same kind; precautionary measures against all that tends to produce two results, viz., spirit and confidence; the opposition offered to literary reunions or any other meetings of a literary kind, and the endeavor by every possible means to produce the greatest mutual ignorance among all the citizens, as it is acquaintance that tends to produce mutual confidence.³³

"Another expedient," he says,

is the endeavor to prevent any word or action of any subject from escaping detection by a system of spies. ... For the citizens are then less free of speech for fear of the spies and, if they do speak freely, are more easily discovered.³⁴

And, he adds,

A tyrant is fond of making wars, as a means of keeping his subjects in employment and in continual need of a commander.³⁵

The sum of all such measures, Aristotle concludes, is "to prevent mutual confidence among the citizens, to incapacitate them for action, and to degrade their spirit."³⁶

From these notions of constitutionalism prevailing in ancient Greece which I have been trying to summarize, we must proceed next to the character of the changes which made such notions so radically different when we first meet them among the Romans some three centuries later; and this change in constitutionalism seems to be bound up with a change in the definition of natural law, which must be briefly indicated before the beginnings of Roman or medieval constitutionalism themselves can be made clear.

CHAPTER III

The Constitutionalism of Rome and Its Influence

THE OFTENER I survey the whole history of constitutionalism the more I am impressed with the significance and importance of the republican constitution of Rome in that development. A generation or two ago it was the fashion to trace all our constitutional liberties back to the institutions of the Germanic tribes as described by Tacitus. Rome had contributed little or nothing to medieval or modern institutions or ideas in this field beyond the absolutist maxim of the Empire that "what has pleased the prince has the force of an enactment of the people." Modern absolutism was a return to Roman autocracy; liberty was solely a retention in the face of it of the freedom of the primitive Germanic peoples. It was sometimes overlooked that Tacitus himself, when he contrasted the virtues of primitive Germany with the degeneracy of Rome, had written with Roman imperial institutions in mind, not those of the Republic. There was undoubted truth in this Germanic interpretation, but its exaggeration had been undermined by more careful historical research long before the recent deplorable exhibitions of tribalism in Germany. Even before these startling modern developments some of us had begun to question some of the conclusions of the German oracle, Otto von Gierke, in his Genossenschaftsrecht. The reaction of the Germanists against the more extreme defenders of Pandektenrecht such as Bernhard Windscheid, and the substitution of a more Germanic code of law in place of the original draft at the opening of this century are easy enough to understand and may have been both necessary and beneficial; but the recent appalling effects of tribal particularism have served to heighten the suspicion held by some of us a good while before, that after all the impressive apparatus of Gierke's Genossenschaftsrecht sometimes merely conceals the weakness of some of its principal historical conclusions instead of really strengthening them. The too ready acceptance of these conclusions by F. W. Maitland, the greatest of all our modern historians of English medieval institutions, unfortunately created a vogue in England and America for these views which a careful examination of them seems hardly to justify.

In returning to our subject proper, the institutions of Rome under the Republic, I shall try to avoid as far as possible the thorny question of origins. Cicero is the first expositor of these institutions whose works are known in any great detail, and Cicero was at once a practicing lawyer and a pupil and para-phraser of Panaetius. Is it the Roman lawyer then who is speaking, or the Hellenistic Stoic, when Cicero sets forth in his De Re Publica and his De Legibus the fundamental relations of the state to law? It is a question I am not competent to answer nor even to try to answer. I shall confine myself therefore to the general principles of the Roman constitution as it actually was in the last century or two of the Republic, or rather so far as we can safely reconstruct it from the surviving contemporary materials. Even in the realm of the actual, it may seem strange to some that I should pay such slight attention to those checks and balances so admired by Polybius and Machiavelli and so despised by Mommsen. My excuse is that these balances, while possibly the most original of Rome's permanent contributions to constitutionalism, are very far indeed from being the most important then, or the most significant now.

We cannot hope to bridge the gap between the constitutionalism of Aristotle and that of Cicero, but even the most superficial comparison of the two will show that a gap is there, and a very wide one. As Dr. Carlyle says:

There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca. ... We have ventured to suggest that the dividing-line between the ancient and the modern political theory must be sought, if anywhere, in the period between Aristotle and Cicero.¹

What is true of political is usually true also of constitutional theory; the two are often nearly indistinguishable, and never more nearly so than in Rome. We should in all probability have to look back as far as republican Rome for the beginnings of our "modern" theory, constitutional as well as political; and we could probably look back little if any further than republican Rome with any assurance.

For the distinctive general principles of Roman constitutionalism under the later Republic — the general principles, the "spirit," rather than the minute details, the thing most important for us here — I have never found any modern guide more suggestive or more penetrating than Rudolf von Ihering's monumental Geist des römischen Rechts. The author's universalism — a universalism which implies an essential individualism — is shown in his assertion that peoples formed by a mingling of races are usually distinguished by their persistent energy, a marked characteristic of the Romans and in modern times of the English, who most resemble them.

But the Roman characteristic of greatest significance for constitutional history is reflected in the fact that we have to wait so long to find in any legal writer the plain statement that a ruler's will actually is law. It is clear, say the authors of Justinian's Institutes, quoting Ulpian, that a command of the emperor in due form is a lex: "Quodcumque igitur imperator per epistulam constituit vel cognoscens decrevit, vel edicto praecepit, legem esse constat." All these expressions of the emperor's will actually are leges, and apparently no predecessor earlier than Ulpian had ever ventured to say so much. The most Gaius will say, even in the second century after Christ, is that it has never been doubted that the will of the Emperor duly expressed should receive the obedience owing to a lex. It is not itself a lex. Gaius does not even quite say, as the authors of Justinian's Institutes do, though I think he does mean to imply, that it has the full force of a lex (legis habet vigorem); his express words are that there is no doubt that any imperial constitution, like a senatus consultum, should have the place of a lex (legis vicem optineat). And for this he gives one reason and one alone — "because the Emperor himself receives his imperium by virtue of a lex (per legem)."²

It is clear that the key to the source of all political authority at Rome is the definition of a lex. A lex, Gaius says in the second century, "is what the people orders and has established." Some four centuries later Justinian's Institutes define it as "what the Roman people was accustomed to establish when initiated by a senatorial magistrate such as a consul." In the exhaustive list of the various kinds of Roman legal enactment which Gaius gives — he has nothing whatever to say concerning the authority of unwritten law or custom — lex stands first, the enactment of the whole people; while the authority of every other form of Roman legislation invariably depends upon its relation to lex. Thus the patricians, we are told, had refused to be bound by enactments made by the plebs alone till these were "equated" with leges by a lex passed by the whole populus itself. Decrees of the Senate were never leges, but in time came to be accepted in place of lex (legis vicem optinet); though Gaius hints at existing doubts of their validity, which probably resulted from the non existence for decrees of the Senate of any particular lex similar to the Lex Hortensia by which plebiscites had been made equivalent to leges. Notwithstanding such doubts, as the Institutes of Justinian somewhat vaguely say, in the course of time "it seemed just (aequum) that the Senate should be consulted" in place of the populus, because the latter had become too great in number to meet for purposes of legislation. It might be said that observance of the Senate's decrees always depended on a "convention of the constitution" rather than a law. As Cicero put it in his De Legibus, "potestas in populo, auctoritas in senatu."³ It was the very necessity of the case, as Pomponius says in an extract preserved in Justinian's Digest, that imposed on the Senate the care of the Republic.⁴ The distinction implied by the letters SPQR, Senatus Populusque Romanus, on the Roman standards really meant something. The constitutional difference and the interrelation of senate and populus were roughly analogous to those existing between a modern English "government" and an English parliament.

Constitutions of the Emperor also, like decrees of the Senate, had for Gaius the effect of lex without themselves becoming leges; but, on the other hand, by the second century after Christ none could possibly doubt the full legal equivalence of an imperial constitution with a lex, as he might of a senatus consultum; for the Emperor by a definite lex had received his imperium — nothing less than the whole of (omne) the people's imperium and potestas, as Justinian's Institutes later phrase it — and more than one of these regal laws were in existence.⁵

Whatever the fact, of the theory of the Roman constitution we can have no doubt: the people, and the people alone, are the source of all law. As Rehm says, "The assembly of the people is the state; not merely the organ of the populus, but the populus itself."⁶ SPQR means senate and populus, not senate and any assembly even roughly representing the people.

For an understanding of the essential spirit of Roman constitutionalism, above all other things, a consideration of the nature of lex is necessary.

"It may be said that the Romans have fixed for all time the categories of juristic thought," says one of the ablest modern historians of the Roman law;⁷ and undoubtedly one of their greatest permanent contributions to constitutionalism was the distinction they made, more clearly than it had been made before, or was to be made for long afterward, between the jus publicum and the jus privatum — a distinction that lies to this day behind the whole history of our legal safeguards of the rights of the individual against encroachment of government. But the true nature of this important distinction is likely to be lost if we forget the close relation that also existed between the private law of Rome and the public. Both were jus, and the same spirit animated them. Public law, as the authors of Justinian's Institutes say, is only that part of jus "quod ad statum rei Romanae spectat"; private law is "that which pertains to the utility of individuals." Their essence is the same; their difference lies in their incidence rather than their nature. As Ihering says in a remarkable passage: ⁸ The state, as a bearer of rights, is the whole of the citizens, the civitas; it is no abstraction apart from the people, and therefore these rights inhere in the people themselves, and what is more, in each of them individually. Public and private rights are not distinguishable in having what the Germans call "subjects" different from each other. The "subject" is always exactly the same for both, the natural person. The sole difference between them lies in the fact that private rights affect private individuals exclusively, while all the individual citizens alike participate in the public. A concrete proof of the correctness of this contention is to be found in the Roman actio popularis, which was open to any private citizen in case of an infringement of the common rights of all.

And what was thus true of rights was equally true of duties, as appears in the fact that a Roman citizen who violated a treaty with another nation was surrendered to the other nation "because he had broken an obligation which rested on him personally."⁹

It is then an inversion of the true historical order to infer, as some have done, that the principles of Roman private law were merely those drawn from the public. The general principles were the same in both, but their earliest application is to be seen far more clearly in relations between individual citizens than in the field of constitutional law proper. The primary notion in each is the independence of the individual, and, as Ihering says again, it was only after a long and bitter struggle that the dominance of the state over him was finally established.

The most effective safeguard of the rights of individual against individual was ultimately found in the guarantee of the people to protect these rights. The observance of the terms of a will, for example, was secured by "registering" it, as we should say, in the comitia calata; and similar instances of private transactions thus publicly guaranteed are numerous in the early law, such as mancipatio, nexum, and the like. The whole people became "responsible" for the maintenance of the individual rights thus created by private act or agreement. These were very concrete rights in the beginning, and the later refined notion that the state is the protector of right in the abstract is the outcome of a long development. In legal history, not only in Rome but elsewhere, the truth of Sir Henry Maine's famous generalization is obvious. In the beginning the principles of the law are "gradually secreted in the interstices of procedure,"¹⁰ and the development of that procedure itself is tentative, from one particular remedy to another, as needs gradually require. The true historical order has been the converse of the logical: principles have developed slowly as a rationalization of existing and only partial remedies; remedies have not been means devised to enforce principles antecedent.

Early legal development is everywhere the gradual merging of damna absque injuria — wrongs without a legal remedy — in a growing list of actionable injuries; and in the beginning the damna were far more numerous than the injuriae. As Maitland puts it for England in his incomparable way, "writs, not rights," must be the subject of any study of the early history of law.

It is only from such a study that we can get a notion of the true content of the word lex in Roman constitutional development, and I should like to add to lex one other word of almost equal significance, not only for Roman constitutional ideas themselves, but for the later influence of these ideas as well — the word sponsio.

Lex in its fully developed constitutional sense is a form of obligation applicable to the people as a whole, but if one were to look through the extracts preserved in the Digest for instances of the use of the word, he would be struck by the many cases in which it clearly refers merely to obligations subsisting between individual citizens. I can give but few of the many instances. Here is one extract from the Responses of Scaevola:

A controversy has arisen between an heir at law and an heir under a will and has been terminated after an arrangement by a definite agreement (certa lege). I ask which one creditors can sue.¹¹

Another, from the Quaestiones of Paulus, is as follows:

It has been asked whether any action lies if a son has been given you by adoption with this proviso (hac lege), that after say three years you should give him to me by adoption. And Labeo thought there was no action.¹²

The last of these dry quotations — and it must be the last — is from Ulpian's commentary on the Edict:

If in the course of an action of wardship it is agreed that interest shall be paid beyond the legal rate, this shall have no effect, for this would ground an action on the agreement; whereas those terms are essential which determine the conditions of the contract (quae legem contractui dant); namely, those entered into when it was made.¹³

Gaius uses lex in the same sense when he speaks of a lease of lands with this stipulation (ea lege), that the heirs of the lessee shall remain in possession,¹⁴ and refers to the hiring of a band of gladiators with a condition (ea lege) respecting those who shall be killed or injured.¹⁵ A lex was a contract between private individuals. But, as we have seen, lex for Gaius is also "what the people orders and has established."

These facts, it seems to me, fully warrant Ihering's generalization when, for example, he says that the effect of a law for the citizen is that of a contract to which he has agreed, and the violation of a law is the breach of an obligation which he has assumed. "The lex publica is a convention of all, and inversely a private convention is a law for the contracting parties." The law is a form of obligation binding the entire people; and, it might be added, binding each of them, because each is assumed to have assented to its enactment. Papinian, usually reckoned the greatest of Roman jurists, put this all in a single sentence: "Lex is a common engagement of the Republic (communis rei publicae sponsio)."¹⁶ Now this sponsio was the essence of the old verbal contract at Rome, and Gaius tells us that its formal question, Dari spondes? and its answer, Spondeo, could be used by none but Roman citizens; while other formulae, such as Dabis? Dabo, might be used by other persons. Corresponding to these private sponsiones were the rogationes in which the whole people were asked if they were willing to assent to proposed legislation and thus make it binding law. And it was this consent alone that gave legal force to the measure proposed. Thus laws were spoken of as leges rogatae. A phrase of the Lex Falcidia, which we should naturally translate "after the enactment of this law," actually reads "post hanc legem rogatam."¹⁷ Enactment is thus termed "rogation," because the rogation contains the exact provision which the people turn into law when they accept it by their vote. But rogatio, like sponsio, had its private-law meaning too. Rogo, Gaius tells us, was one of the formal words by which a trust could be created in a will,¹⁸ and other instances are numerous.

When Papinian speaks thus of a public law as a common engagement (sponsio) of the Republic, a common responsibility which the whole people have assumed, one cannot but believe that he must have been fully conscious of the political implications which the close parallel between the public and the private law inevitably brings to mind. Perhaps it should not be surprising that he met a violent death at the hands of the Emperor Caracalla.

But no account of Roman constitutionalism could be adequate which ignored the tendency toward autocracy in Roman institutions apparent even in the republican period. What impresses one here is the remarkable balancing of this tendency with the spirit of individual liberty which I have hitherto been trying to illustrate. Such a balancing is exemplified in the Roman distinction between the older jus strictum and the growing jus honorarium, and the remarkable fact that magisterial authority, the magistrates' imperium, becomes the chief medium of the liberalization of the law. Lawyers as a class are usually thought of as reactionary defenders of musty precedents, and sometimes they are. But I submit that there are few parallels in all intellectual history to the stupendous liberalization of Roman social institutions brought about by the generations of Roman jurists and magistrates, most of whom are unknown even by name; and this work was done largely by virtue of an authority, an imperium, which we must call in some sense arbitrary.

Thus a transfer of lands in strict law could be made only by a procedure so formal and intricate that the slightest slip would invalidate it, defeating the intentions of parties and what we should consider the ends of justice. No magistrate had authority to change this law, and till a comparatively late period it remained unchanged; but by authority of his imperium the magistrate could grant possession to the party "equitably" though not legally entitled to ownership, and could protect his possession until the law of prescription merged this possession in a full legal title. In this way the whole of property law was transformed and liberalized, and formality gave way to equitable considerations. It was nothing less than a gradual and silent social revolution, if we consider that a similar transformation was going on in every branch of law — the law of marriage, of family relations, of testamentary succession, of contracts, and, in fact, of all human relations.

There is probably no other social revolution in recorded history so important, so complete, so continuous over so long a period, as this evolution traceable step by step in the sources of Roman private law. We find institutions of an age long bygone still preserved in a law that is binding, but alongside it an actual administration enforcing principles often in many ways more advanced than those embodied in our own modern codes. Strict law tends to become a fiction, equity has become the important fact. The modern sociological school of jurists might, if they cared to look for it, find the strongest support for their theories in this remarkable evolution of Roman law. It is an interesting fact that Ihering, the greatest of early modern sociological jurists, left his Geist des römischen Rechts incomplete to pass on to the writing of his Zweck im Recht. The former naturally led him to the latter, and it is on the former rather than the latter that his reputation is likely to rest. It was the imperium no doubt that empowered the Roman magistrate to bring about such changes as these, but what we need to know is both how and why this imperium was used to strike off the shackles of the old formal law instead of strengthening them.

That subject is far too vast to be treated in a single lecture, but it suggests some parallels which may throw a little light on the general nature of Roman constitutional development. The parallel between Rome, on the one hand, and England and the British Empire on the other, has often been referred to; Ihering has noticed it, and Lord Bryce has developed it at some length in papers included in his two volumes of Studies in History and Jurisprudence. The parallel is very striking between the development of Rome under the Empire and that of Britain; particularly in the contrast noticeable in both between law and convention, and the resulting growth of what might be called "political fictions." But these parallels are usually drawn between two constitutional developments which appear very late in the national history both of Rome and of England. What we need in both cases is a study and a comparison of the earlier national characteristics which lie behind and may serve to explain their later striking similarities. That is a subject of much greater difficulty, and it has never yet been examined with the care it deserves and ought to receive. For I am convinced that the most fundamental likeness of Roman and British constitutionalism is a likeness resulting from a similarity of conditions which made English law a "common law," and made Roman law the law of the Italian peninsula. Before we compare Rome of the third or fourth century of the Christian era with Britain of the nineteenth, we ought to look for the similarities between republican Rome, and England in the period of corresponding growth during the three centuries following the Norman Conquest. It was the constitutional character of those relatively early periods of development in the two rival systems of common law which still dominates the western world; for in them were shaped those fundamental principles of both private and public law which constitute the true spirit of Roman and of English constitutionalism. The expansion of English law in southern Britain was a gradual process of incorporation of varied local customs in a system which in time thus became general and "common." The common law of England is an English jus gentium compounded of many pieces of local custom. In like fashion the jus gentium of Rome consisted of the legal principles "common" to the Italian states which Rome's expansion merged in the Roman judicial system. Among the unsung heroes of English constitutionalism are the great justiciars of Henry II, such as Richard de Lucy and Ranulf Glanvill, who were doing for English law what, centuries before, the long line of obscure but important praetores peregrini had done for the Roman.

The expansion of both the Roman and the English legal system called for great and fundamental changes at a time in the history of each when the law was still plastic but the process of law making was yet undeveloped. Thus the legal changes in twelfth- and thirteenth-century England and in the later centuries of the Roman Republic, far-reaching as both were, came to be the work of jurists rather than of legislators, and the mode of their expansion of the law came to be extension by way of juristic interpretation rather than addition through legislative action.

To a degree that seems unexampled for the time when it occurred, both Roman and English law thus became what we should term "judge-made" law, and to the end both systems exhibited the familiar characteristics of such law. One of the most marked of these characteristics was the great abundance of legal fictions which we find in both systems. Magistrates could not change the law, but they could stretch it to cover new circumstances by an untrue assumption of fact which no one was permitted to disprove. Such expedients tend to disappear, because less needed, when legal change becomes consciously legislative, as it finally did become in both Rome and England; and these archaic fictions have been the scorn of most modern legal reformers, notably Jeremy Bentham. But Bentham, like many of his fellows since his day, was much more noteworthy for his practical service in law reform than for his historical sense. When an English court, in order to extend its jurisdiction beyond the limits of the ancient law, took notice of a bond executed "at Bordeaux in Islington in the County of Middlesex," or of the seizure of a vessel "on the high seas, to wit in Eastcheap in the City of London," this was a sign, not of the blindness of the courts, but of the backwardness of the legislature.

In still earlier periods, when legislative action was infrequent or even unthought of, these judicial fictions were the usual means by which judges tried to keep the law abreast of the times. The early history of law, both Roman and English, is full of them. Instances, though numerous in private law, are by no means confined to it. Where but in Rome during ancient times do we find a political fiction comparable to the Principate, "an absolute monarchy disguised by the forms of a commonwealth," as Gibbon calls it? Where but in England during modern times can we find an indigenous constitutional development in which the titular ruler is a king, the legal sovereign an assembly, and the ultimate political power a people? The Principate and the modern "limited monarchy" are alike fictions, and are the result of an age-long habit of thinking in fictions. The other great political fiction of the same class that comes to mind is the Holy Roman Empire; which, as Voltaire said, was not holy, not Roman, and not an empire. It was, however, much more Roman than holy, and its truly fictional character was purely Roman. And who but the Romans among the ancients would have "consulted the Senate" when the whole sovereignty lay in the Comitia Centuriata? Who but the English today would go on calling their court of final appeal the "House of Lords"? Or where except in England, or in a country with an English tradition, could one call the act of a king "unconstitutional" if he chose to exercise his undoubted legal discretion in withholding assent to a bill passed by both houses of parliament?

The constitutional or political habit at Rome which made possible the Principate seems to have been well-nigh unique in its time. There is much in the earlier history of Rome, institutional and intellectual, to prepare the way for it, but outside Rome apparently little or nothing. One cannot help wondering what Aristotle would have thought of the Roman Principate and under what form of government he would have classified it. Even in the most empirical and most practical parts of Aristotle's Politics there is nothing like the permanent antithesis of law and fact characteristic of the Roman Principate, or of the modern "limited" monarchy in which the king "reigns but does not rule." In Rome as in Greece there were revolutions, but in Rome a formal continuity was preserved, notwithstanding fundamental changes, that tended to disguise under older forms innovations which in Greece would have been open and avowed. It is interesting to see how much more frankly the new fact of the monarchy of the Caesars was recognized in the Greek provinces of Rome than in the West, and Ihering notes for an earlier period how often Greek writers on Roman history — such as Polybius, Dionysius of Halicarnassus, or Plutarch — consider as violations of law acts which to the Roman annalists are blamable but entirely within the law. The mos majorum forbade many things to a Roman for which there was no legal penalty. Convention, like fiction, played a large part in the development of Roman constitutionalism.

It is this general principle of continuity which helps to make clear the apparent paradox of the later Roman Empire, the retention by a despot like Justinian of writings alive with the spirit of constitutionalism. Few writings in the world's history have had the decisive influence of these lawbooks of Justinian. So much would probably be admitted on all hands, but with regard to the question whether on the whole this influence has been good or bad there is not the same unanimity, and to that question we must now turn.

From what has gone before it is evident that the first of my conclusions must be that the true essence of Roman constitutionalism does not lie in those late statements of absolutism to which so much currency has since been given, such as the maxim, Quod principi placuit legis vigorem habet, or Ulpian's assertion, Princeps legibus solutus est.¹⁹ It lies in the older, deeper principle that the populus, and none but the whole populus, can be the ultimate source of legal authority. The fundamental doctrine underlying the Roman state, its true guiding spirit, is constitutionalism, not absolutism — a constitutionalism that Justinian's commissioners, even in the sixth century, could not delete from the legal sources, notwithstanding the Emperor's order to bring these sources up to date by addition, elimination, or change.

A second proposition may or may not prove to be more acceptable than this first: Before the Italian Renaissance, at least, the influence of Roman political institutions and ideas upon those of the developing states of western Europe was exercised through the legal compilations of Justinian more than through any other medium, even such a one as the history or general literature of Rome.

A third thesis will be recognized at once as more debatable, but I think it is defensible: The really decisive influence of Rome on later European politics came, not after the Italian Renaissance in the tendency toward absolutism, but during the middle ages in the reinforcement of constitutionalism.

If we confine ourselves strictly to matters legal and political, or at least to matters legal, the so-called Renaissance of the Twelfth Century appears more decisive in its ultimate influence than that later development to which we usually attach the word "Renaissance" par excellence.

In a brilliant lecture,²⁰ F. W. Maitland once pointed out the extent of the attack made upon the indigenous common law of England by the revived Roman law of the sixteenth century, and he might well have continued his study into the next century; but he recognized clearly that for England this Roman attack was an utter failure. English law was too "tough"; unlike the native law of Germany, it was already immune to foreign influence; it had been "inoculated" in the medieval period, and it was defended in the crisis by such staunch medievalists as Sir Edward Coke. Maitland attributes the persistence of the English common law very largely to the influence of the inns of court, and in this no doubt he is right; but the inns themselves were the result of an earlier development, and to me the really critical and decisive period in the competition of the native and the Roman law in England seems to come earlier, long before these societies of lawyers were founded, in the development of a common legal administrative system such as always results quickly in some kind of "common law." The common law that survived this belated attack of Romanism in the sixteenth century was of course a native English law, but it survived not because it was English but because it was "common"; or rather, because it had become "common," and that at a date relatively very early.

There was no mysterious quality in English custom, out of which our common law was made, to distinguish it from similar custom elsewhere; it had no "manifest destiny" to become as it did the unique rival of Rome in the legal systems of the later western world. Its ultimate victory over Romanism was not the result of any inherent superiority, Wycliffe and Sir John Fortescue to the contrary notwithstanding. That victory was won by the end of the thirteenth century, and the issue was really determined in the twelfth. If Irnerius had taught, or Azo had written, a century before he did, or if a Henry III instead of a Henry II had followed Stephen on the throne of England, we might well be using the Digest of Justinian as a text today in our American law schools. It was not the merits of English custom, but the uniform writs and the itinerant justices of Henry II, that made this custom the "law of the land." And if those English justices of the twelfth century had been as fully versed in the law of Rome as the German judges were in the fifteenth, an English "reception" of Roman law in the thirteenth century seems no more startling or unlikely as a consequence than the later German one.

Law, however, is one thing, jurisprudence quite another. Law is the material of jurisprudence, jurisprudence the rationalization of law. The law may come from one source, the jurisprudence from another. In the early sixteenth century the English jurist Christopher Saint-German divided the law of England, or more properly her jurisprudence, into "the law of reason primary and the law of reason secondary."²¹

In this division he was no doubt influenced by St. Thomas' distinction between the ultimate principles of the universal and unchangeable law of nature, on the one hand, and, on the other, the specific deductions that men may make from these general principles. Such secondary deductions concerning the law of property — and the law of property then included probably four-fifths of all law — when actually found among all nations, Saint-German calls "the law of reason secondary general, for the law of property is generally kept in all countries"; whereas

The law of reason secondary particular is the law that is derived of divers customs general and particular, and of divers maxims and statutes ordained in this realm. And it is called the law of reason secondary particular, because the reason in that case is derived of such a law that is only holden for law in this realm, and in none other realm.

This is little more than an extension of the statement of Gaius: "All peoples who are ruled by laws and customs employ a law partly peculiar to themselves, partly common to all mankind."²² Saint-German's "law of reason secondary general" is in fact the jus gentium of Gaius.

In the earlier formative period of the English common law we do undoubtedly find not only pure English custom but a rationalization of it, a jurisprudence which might be called native, an English "law of reason secondary particular." But as Saint-German clearly implies, these "particular" deductions are and must be only a limited application of the universally accepted principles of the "law of reason secondary general." To put it in more familiar language, a given country may have its own particular laws and even its particular jurisprudence, but this jurisprudence cannot but be consonant with a jurisprudence that is general and universal.

Yet whatever a nation's peculiar laws may be, few, I think, could doubt the truth of the statement of Édouard Cuq, quoted above, that "the Romans have fixed for all tune the categories of juristic thought." The "law of reason secondary general" of England, as of every other western European country, was a law, or rather a rationalization of law, permeated by the juridical conceptions of Rome.

In the formation of our common law these Roman conceptions have therefore, as it seems to me, a place no less significant than the English custom they served to rationalize. They came to England too late, no doubt, to replace the English customary law itself, but they did come in time to have a large part in the orderly arrangement and development of that law and in the "law of reason secondary particular" derived from it.

The failure always to distinguish thus between matter and form may be the explanation of the wide difference in the estimates modern legal historians give of the extent of the Roman element in English law. Sir Henry Maine asserted that Bracton had palmed off as English a law of which a full third was Roman; but according to Maitland "a thirtieth" would have been nearer the mark.²³ Any attempt to give a quantitative ratio of two things as different as the matter and the form of law is likely to be inconclusive.

In this long discussion of law it might seem that we had lost sight of the constitution. But in the middle ages the connection between private and public law was far closer than it is now; and in early English, as in early Roman institutions, we must look for much of the spirit of the constitution in the developing principles of what we now think of as only a single branch of private law, the law of property. For the medieval law of property was also the law of franchises or "liberties," of personal status, of public office, and of much more besides. For example, even so constitutional a thing as the king's prerogative, when it became the subject of judicial discussion, was treated in the courts under the same general rules as the proprietary right of any subject, and this almost to the very eve of what we call the modern period. In France of the thirteenth century, according to Beaumanoir, the king has the sovereignty over his kingdom, but so, he says, has every individual baron over his barony.²⁴

In conclusion therefore I shall add two more heretical generalizations to the ones I have hitherto been trying to defend and illustrate. The first is that, to reach a true conception of the spirit of our constitutional antecedents in the middle ages, the jurisprudence is at least equal in importance to the mere subject matter of the law. I do not question here the English character or the early origin of the bulk of our common law; above all, I would not minimize the decisive influence of the ancient English County Court; I only say that the constitutional implications may come as much — if not indeed even more — from the law's later rationalization as from its original character. The second proposition is that this jurisprudence, as distinct from that law, is pretty largely Roman in its derivation, though considered in the middle ages probably not so much specifically Roman as "common to all mankind." The third and last is that the central political principle of this Roman jurisprudence is not, as has so often been assumed, the absolutism of a prince, but the doctrine that the people is the ultimate source of all legitimate political authority in a state. The last of these propositions perhaps requires the most proof, for it has been most frequently disputed. "Few texts," says the late Professor Esmein, "have exercised an influence more profound upon the development of the public law in certain countries of Europe, and above all in France," than the Roman maxim, princeps legibus solutus est;²⁵ but he admits that England "has had the good fortune to escape that influence."²⁶ This unusual good fortune, when admitted, is usually attributed to the free institutions of Anglo-Saxon England, to an unexplained development of the representative parliament in the later middle ages, or to some mysterious quality in the English blood or character that makes for liberty. The threat of absolutism, when it came — as of course it did — came from the despotic doctrines of the Roman law, which was "reborn" with everything else at the close of the middle ages. This is the theory that is generally current.

For the period immediately after the Conquest in England the evidence on which one must rest the conclusions just slated, or the different conclusions which I prefer, is slight, scattered, and rather inconclusive — a few stray sentences occurring incidentally here and there in the legal writings of the period, of which the so-called Leges Henrici Primi is easily the most important. Just at the end of the Norman period, in the only book of pure Roman law written in medieval England, in the Prologue of the Liber Pauperum of Vacarius, we find a repetition of some of the statements of the first title of Justinian's Digest concerning the source of law, including the one that the emperor is its only establisher and interpreter. But the book of Vacarius was written entirely in the spirit of the early glossators; it is purely antiquarian and Roman and makes practically no reference to English law or its relation to the law of Rome.²⁷

For concrete evidence of much value we have to wait till the reign of Henry II in the De Legibus et Consuetudinibus Angliae attributed to Ranulf Glanvill, Henry's chief justiciar during his later years, and written after the enactment of the king's great administrative reforms. Glanvill's prologue contains certain statements of the greatest interest. It is evident that the author considers this book as a kind of English equivalent of Justinian's Institutes, and his prologue is clearly modeled on that of Justinian though the book itself is not. A comparison of the two prologues is instructive both for their similarities and their differences. After a mention of the need for laws as well as for arms, each has a paragraph recounting the military achievements of the ruler, and then proceeds to a summary statement concerning the laws. The last of these alone is important here. Justinian's summary refers only to the written law and the compilations of it made at his order. The one in Glanvill must in part be given in its own words. In the king's court each decision, it says, is governed by the laws of the realm (legibus regni)²⁸ and by customs (consuetudinibus) drawn from reason and long observed; and in these decisions the king does not disdain to consult those of his subjects whom he knows to