Flexible Constitutions in Britain and Rome

While in parliament the idea of constitutional flexibility set the terms of ac­ceptable debate, in the lecture hall it invited analytic inquiry and historical reflection. It is necessary therefore to turn to Bryce's jurisprudential writing in order fully to appreciate his justification of home rule in terms of the constitu­tion's flexibility.

Before turning to the lecture itself, it is instructive to note its context among the other writings in which it appeared in print, for it was but one in a series of six chapters comparing the history and law of Britain and Rome in the two volumes of Studies in History and Jurisprudence. The other chapters compared respectively British and Roman imperial rule in India, legal systems, legisla­tion, legal development, and the law of marriage and divorce. Not in all of these did Bryce find clear lessons to be drawn from Roman history that were applicable to Britain. Reflecting on Roman and British legal development, for instance, Bryce suggested the two �great difficulties’ facing the development of law in contemporary Britain had to do with industrial and commercial enter­prises, an area upon which �the experience of the ancient world and that of the Middle Ages throws little light’.^[1210] But the clearest extraction of lessons from Rome, alongside the chapter on constitutions, comes in his comparison of British and Roman imperialism. It is therefore worth briefly considering this chapter before turning to the lecture on constitutions.

In Bryce’s view the Roman and British empires stood out on the long histori­cal timeline as the two great �effort[s] of Nature to gather men together under one type of civilization’^[1211] But he found that, of the three classes of territorial possession in the British Empire, only India was a suitable comparison with Rome. The self-governing colonies of Canada, Australia, and New Zealand were unlike Rome in being self-governed, and the crown colonies like Jamaica and Cyprus he dismissed as so diverse �that they cannot profitably be dealt with as one body’^[1212] But British India provided useful points of comparison with Rome in means of communication, railroads, liberality of provincial ad­ministration, method of administration, the armies, religious toleration, and the extension of public and private rights. Of particular interest are two re­spects in which Bryce found England to have benefitted from similar policies as Rome. First was the policy of leaving intact existing forms of self-government in conquered territories. As Rome had done in the self-governing Greek cities it conquered, so had Britain with the village councils of India. But Britain had gone further by extending new forms of self-government, specifically munici­pal constitutions for certain cities for the purpose of �training the people to a sense of public duty’^[1213] Likewise, as Rome had fairly liberally extended citizen­ship to the inhabitants of its conquered territories, so had Britain recognised from the start the private civil rights of subject peoples and over time had come to grant them public rights as well. Native Indians were eligible to be ap­pointed or elected to public office, and two had been elected MPs for London constituencies. To be sure, as residents of India they had no representation in parliament, but neither did Anglo-Indians. And Bryce saw no major danger revealed by the fall of the Roman Empire.^[1214] On his analysis, Rome fell finally because it grew too weak to resist invaders from the North and East, and this for a combination of practical and moral reasons.

The note Bryce struck in his comparison of the British and Roman constitu­tions was rather less cheery, especially when the lecture is read in light of the home rule crisis that unfolded shortly after Bryce gave it in 1884. Part of Bryce’s task in the lecture was to introduce a new classification of constitutions to re­place the conventional dichotomy of �written’ and �unwritten’. Given that every written constitution developed unwritten customs over time and that every unwritten constitution was really comprised largely of an assortment of writ­ten materials like statutes, Bryce suggested that �flexible’ and �rigid’ better cap­tured the essential difference. Flexible constitutions, like Britain’s, were those that were subject to change by the same legislative means as any normal statute and thus left the legislature ultimately supreme, while rigid constitutions, like the US’s, could only be changed by special amendment processes and thus con­strained the legislature. Britain and Rome were for Bryce the paramount exam­ples of a flexible constitution. In Britain, flexibility was a function of parliamen­tary sovereignty: parliament had complete supremacy over all law, including constitutional law. At Rome, likewise, the means of constitutional amendment was a simple vote by the comitia on a motion from a magistrate and sanctioned by the tribunes.

Constitutional flexibility was at once a virtue and a vice. This is the lesson Bryce gleaned from British and Roman constitutional history. The advantage of a flexible constitution was the way in which it could adapt to major changes and thus avoid revolution. For example, the British constitution was flexible enough to permit its executive to act unilaterally in cases of emergency. It had kept �in reserve’ an elastic prerogative - nominally in the crown but practically under control of the cabinet - which could be employed without parliamen­tary approval. Likewise, the suspension of a statute could temporarily suspend the control of the law and courts,just as a Vote of Credit could suspend the Commons’ control over the government. And for the sake of efficiency the con­stitution had permitted parliament to delegate certain duties to inferior pow­ers. Even the authority of the crown to issue Orders in Council derived from parliament. Statute also gave rise to the Judicial Committee of the Privy Coun­cil to act as a supreme court of appeal for the colonies. All of this constitutional flexibility provided �a means of preventing or minimizing revolutions by meet­ing them halfway’. In response to popular demands, for example, the House of Lords had given up its right to alter money bills even though there was (then) no law requiring this. Likewise, Parliament had avoided a revolution by gradu­ally extending the suffrage through the major Reform Acts. Because the Consti­tution permitted small changes, giving moderate reformists a moderate outlet, radical reformist movements were unlikely to materialise into revolutions. Finally, Bryce suggested that flexible constitutions were especially capable of territorial expansion.