because generally observed and regularly applied to recurrent facts, and the particular decisions taken in particular cases. In this sense the Romans may have begun to feel they had a Constitution before they had gone far in the conquest of Italy. Our English ancestors reached the same consciousness in the fourteenth century, when much stress began to be laid upon political precedents, and Parliament, by this time a Representative body, and thereby entitled to speak for the nation, had definitely established its rights as against the Crown1. The Confirmation of the Charters together with the statute De Tallagio Non Concedendo of A.D. 1297 is often taken as marking the first form of the plainly settled English Constitution, but perhaps the successful resistance of Parliament to King Edward the Third sixty years later is a better point to choose. Anyhow the language of Chief Justice Fortescue (under Henry the Sixth) shows how clearly drawn the main lines of the Constitution had become in his time. When this stage has been reached, efforts are sometimes made to give to these constitutional rules, or to certain among them, an exceptional degree of force and permanence. Such rules may be embodied in a document of special sanctity; or they may be protected by oaths. But the creation of a truly Rigid Constitution comes later, when some system of representation has appeared. I shall presently return to examine the causes which produce it.

1 The history of England illustrates what is here said regarding small and large communities. The Folk Mot of the West Saxons when it passed into the Magnum Concilium of all England, though it remained in theory a Primary Assembly, was practically no longer a meeting of all freemen. It could not have continued to embody and safeguard the constitutional rights of the people but for the later invention of Representation, which made it again a virtually Popular though no longer a Primary Assembly.

V. THE STRENGTH AND WEAKNESS OF FLEXIBLE
CONSTITUTIONS.

The names 'Flexible' or 'Fluid,' which I have suggested for Constitutions of this type, seem to suggest that they are unstable, with no guarantee of solidity and permanence. They are in a state of perpetual flux, like the river of Heraclitus, into which a man cannot step twice. Not only are new laws constantly passed which more or less affect them, but their mere working tends to alter them daily. Just as every man's character is being every day insensibly modified by the acts he does, by the thoughts he cherishes, by the emotions which each new experience of life brings with it, so every decade saw the Constitution of Rome, and sees the Constitution of England, slightly different at the end of even so short a period from what it was at the beginning. Even a deliberately conservative policy cannot arrest this process of variation. If the change does not for a time appear in the laws, it is in progress in the minds of men, and may have all the more violent a working when it begins to tell upon legislation. A reaction, such as that carried through by Lucius Cornelius Sulla at Rome, or that which followed the fall of the Cromwellian Protectorate in England, is almost as fertile in change as a time of revolution. The past can never be effaced, since the recollection of it is an element in shaping the future, and the measures taken to restore a status quo ante always contain much which was not in that status quo ante, much which is in itself new, and the source of further novelties. The only cases in which constitutional development can be

said to stop are those where, as at Venice and in some of the cities of post-mediaeval Switzerland, an oligarchy gets control of the government, and, in extinguishing the spirit and the habits of freedom, arrests the natural processes of movement and development until some powerful neighbour overthrows the State, or internal economic changes induce a revolution. Even under a despotism, the system of government changes insensibly from century to century, as it did in the old French monarchy, and as it has recently done among a people so stagnant as the Turks. But despotic systems, being scarcely classifiable as Constitutions, do not come within our present inquiry.

These things being so, it seems natural to assume that Flexible (the so-called 'unwritten') Constitutions, having been enacted and being alterable by the ordinary legislative authority, and not being contained in any specially sacred instrument, will in fact be subject to frequent and large changes, and will moreover be so readily transgressed in practice, that they will furnish an insufficient guarantee for public order and for the protection of private rights.

The facts, however, do not support this assumption. Let us take our two typical instances, Rome and England. The Roman Constitution is an extreme case of a Frame of Government capable of being changed in the quickest and simplest way. Nothing was needed but a vote of the comitia, on the proposition of a competent magistrate, accompanied by the silence of the tribunes. No doubt any single tribune could paralyse the action of the comitia, but in such a community as Rome became in the later days of the Republic it must

often have been easy for those who desired a change to 'get at,' or to remove, an obnoxious tribune. Yet the Constitution of Rome, regarded on its legal side, changed comparatively little in the three centuries that lie between the Licinian laws and the age of Sulla, for most of those deviations from ancient usage which, as we can now see, were working towards its fall, were in form quite legal, being merely occasional resorts to expedients which the Constitution recognized, though they had been more rarely and more cautiously used in older and better days. So in England, the exercise of the sovereign power is lodged in an assembly which can, on occasion, act with extraordinary promptitude, as when some while ago (April 9, 1883) the Explosives Act was passed through the House of Commons in a few hours (the standing orders having been suspended), and having been forthwith passed by the House of Lords also, received the royal assent next day. So the most sacred rules and principles of the Constitution might with perfect legality of form be abolished-Magna Charta and the Bill of Rights and the Act of Settlement includedjust as quickly as the Explosives Act was passed. Yet the main lines of the English frame of government have since 1689 and 1701 remained legally the same; and the most important changes made since the latter year have been effected after long and strenuous controversies 1. We all know how hard it is to secure even small constitutional improvements, such as the abolition of the provision, confessedly useless and certainly troublesome,

1 The two most important changes, the Union with Scotland and the Union with Ireland, were, however, among those most quickly carried through.

which obliges a member of the House of Commons to vacate his seat and seek re-election on his being appointed a Minister of the Crown.

One explanation of this apparent paradox is (though sometimes neglected) obvious enough. The stability of any constitution depends not so much on its form as on the social and economic forces that stand behind and support it; and if the form of the constitution corresponds to the balance of those forces, their support maintains it unchanged. Two other reasons deserve to be more fully stated.

A Flexible or Common Law Constitution sometimes owes its stability to the very conditions which have enabled it to grow out of isolated laws and mere usages into a firmly settled Frame of Government. There have no doubt been many cases, such as those of most of the Greek cities of antiquity, where the eager restless spirit of the people and the violence of faction never allowed any system of government to last long enough to strike deep root. Such constitutions were often enacted all in one piece, and would have been made Rigid, had the citizens who enacted them known how to make them so. They were seldom the growth of long-continued usage. But the best instances of Flexible Constitutions have been those which grew up and lived on in nations of a conservative temper, nations which respected antiquity, which valued precedents, which liked to go on doing a thing in the way their fathers had done it before them. This type of national character is what enables the Flexible Constitution to develop; this supports and cherishes it. The very fact that the legal right to make extensive changes has long existed, and has not been