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with the utmost definiteness of formulation. The constitution of England, the most famous of constitutional governments and in a sense the mother of them all, is not written, and the constitution of Russia might be without changing the essential character of the Czar's power. A constitutional government is one whose powers have been adapted to the interests of its people and to the maintenance of individual liberty. That, in brief, is the conception we constantly make use of, but seldom analyze, when we speak of constitutional govern
Roughly speaking, constitutional government may be said to have had its rise at Runnymede, when the barons of England exacted Magna Carta of John; and that famous transaction we may take as the dramatic embodiment alike of the theory and of the practice we seek. The barons met John at Runnymede, a body of armed men in counsel, for a parley which, should it not end as they wished it to end, was to be but a prelude to rebellion. They were not demanding new laws or better, but a righteous and consistent administration of laws they regarded as already established, their immemorial birthright as Englishmen. They had found John whimsical, arbitrary, untrustworthy, never to be counted on to follow any fixed precedent or limit himself by any common understanding, a lying master who respected no man's rights and thought only of having his own will; and they came to have a final reckoning with him. And so they thrust Magna Carta under his hand to be signed-a document of definition, which spoke of rights which had been disregarded and which must henceforth be respected, of practices until now indulged in which must be given over and remedied altogether, of ancient methods too long abandoned to which the king must return; and their proposal was this: "Give us your solemn promise as monarch that this document shall be your guide and rule in all your dealings with us, attest that promise by your sign manual attached in solemn form, admit certain of our number a committee to observe the keeping of the covenant, and we are your subjects in all peaceful form and obedience; re
fuse, and we are your enemies, absolved of our allegiance and free to choose a king who will rule us as he should." Swords made uneasy stir in their scabbards, and John had no choice but to sign. These were the only terms upon which government could be conducted among Englishmen.
This was the beginning of constitutional government, and shows the nature of that government in its simplest form. There at Runnymede a people came to an understanding with its governors, and established once for all that ideal of government which we now call "constitutional"-the ideal of a government conducted upon the basis of a definite understanding, if need be of a formal pact, between those who are to submit to it and those who are to conduct it, with a view to making government an instrument of the general welfare rather than an arbitrary, self-willed master, doing what it pleases and particularly for the purpose of safeguarding individual liberty.
The immortal service of Magna Carta was its formulation of the liberties of the individual in their adjustment to the law.
And so the instrumentalities through which individuals are afforded protection against the injustice or the unwarranted exactions of government are central to the whole structure of a constitutional system. From the very outset in modern constitutional history until now it has invariably been recognized as one of the essentials of constitutional government that the individual should be provided with some tribunal to which he could resort with the confident expectation that he should find justice there-not only justice as against other individuals who had disregarded his rights or sought to disregard them, but also justice against the government itself, a perfect protection against all violations of law. Constitutional government is par excellence a government of law.
I am not repeating the famous sentence of the Massachusetts Bill of Rights, "to the end that this may be a government of laws and not of men." There never was such a government. Constitute them how you will, governments are
always governments of men, and no part of any government is better than the men to whom that part is intrusted. The gauge of excellence is not the law under which officers act, but the conscience and intelligence with which they apply it, if they apply it at all. And the courts do not escape the rule. So far as the individual is concerned, a constitutional government is as good as its courts; no better, no worse. laws are only its professions. It keeps its promises, or does not keep them, in its courts. For the individual, therefore, who stands at the centre of every definition of liberty, the struggle for constitutional government is a struggle for good laws, indeed, but also for intelligent, independent, and impartial courts. Not only is it necessary that the people should be spoken for in the conduct of the government by an assembly truly representative of them; that only such laws should be made or should be suffered to remain in force as effect the best regulation of the national life, and that the administration should be subject to the laws. It is also necessary that there should be a judiciary endowed with substantial and independent powers and secure against all corrupting or perverting influences; secure, also, against the arbitrary authority of the administrative heads of the government.
Indeed, there is a sense in which it may be said that the whole efficacy and reality of constitutional government resides in its courts. Our definition of liberty is that it is the best practicable adjustment between the powers of the government and the privileges of the individual; and liberty is the object of constitutional government. The ultimate and characteristic object of a constitutional system is not to effect the best possible adjustment between the government and the community, but the best possible adjustment between the government and the individual; for liberty is individual, not communal. Throughout English history, throughout all the processes which have given us constitutional government as the modern world knows it, those who strove to restrain or to moralize government have perceived that the whole reality of the change must find its expression
in the opportunity of the individual to resort for the vindication of his rights to a tribunal which was neither government nor community, but an umpire and judge between them, or rather between government and the man himself, claiming rights to which he was entitled under the general understanding.
Nothing in connection with the development of constitutional government is more remarkable, nothing commends itself more to the understanding of those who perceive the real bases of human dignity and capacity, than the way in which it has exalted the individual, and not only exalted him, but at the same time thrown him upon his own resources, as if it honored him enough to release him from leading strings and trust him to see and seek his own rights. The theory of English and American law is that no man must look to have the government take care of him, but that every man must take care of himself, the government providing the means and making them as excellent as may be, in order that there may be no breach of the peace and that everything may be done, so far as possible, with decency and in order, but never itself taking the initiative, never of its own motion intervening, only standing ready to help when called on. Such an attitude pre-supposes both intelligence and independence of spirit on the part of the individual; such a system elicits intelligence and creates independence of spirit. The individual must seek his court and must know his remedy, and under such a compulsion he will undertake to do both. The stimulation of such requirements is all that he needs, in addition to his own impulses and desires, to give him the attitude and habit of a free man; and the government set over such men must look to see that it have authority for every act it ventures upon.
It further emphasizes this view and purpose of our law, that no peculiar dignity or sanctity attaches amongst us to any officer of government. The theory of our law is that an officer is an officer only so long as he acts within his powers; that when he transcends his authority he ceases to be an offi
cer and is only a private individual, subject to be sued and punished for his offense. An officer who makes a false arrest without warrant is liable to civil suit for damages and to criminal prosecution for assault. He has stepped out of the ranks of public officers, represents nobody but himself, and is merely committing a private wrong. That is the explicit principle of American law not only, but of English law also; the American practice is derived from the English. It is a logical, matter-of-course inference of the constitutional system; representatives of government have no authority except such as they derive from the law, from the regulations agreed on between the government and those who are to be governed. Whoever disregards the limits of the law transgresses the very fundamental presumptions of the system and becomes merely a lawbreaker, enjoying no privilege or exemption. Such a principle in effect repeats the understanding of Runnymede: "Here is this charter; sign it and observe it, and you are our king; refuse to sign it, violate or ignore it and you are not our king, but a man without kingly authority who has done us wrong, and we are your enemies and shall seek redress." It is the same understanding from the king at the top to the constable at the bottom.
It remains only to note what may be called the atmosphere of constitutional government. It is the atmosphere of opinion. Opinion is, of course, the atmosphere of every government, whatever its forms and powers: governments are contrasted with one another only by the degree and manner in which opinion affects them. There is nowhere any such thing as a literally absolute government. The veriest despot is a creature of circumstances, and the most important circumstance of all, whether he is conscious of adjusting himself to it or not, is the disposition of those about him to obey him or to defy him. Certain things are definitely expected of him: there are certain privileges which he must always respect, certain expectations of caste and of rank which he must always punctiliously regard. Above all there is the great body of habit, the habitual frame of the life in which