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II: The Ancient Conception of a Constitution - Charles Howard McIlwain, Constitutionalism: Ancient and Modern 
Constitutionalism: Ancient and Modern (Indianapolis: Liberty Fund, 2008).
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First published in 1940 by Cornell University Press. Material from the Revised Edition copyright 1947 by Cornell University, copyright renewed 1975; it has been included by permission of the original publisher, Cornell University Press.
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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 ἦθος, 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 ἦθος of a people, but I can mention only one or two. “Our whole state,” Plato says in the Laws, “is an ‘imitation’ (μίμησις) of the best and noblest life.”16 In the Panathenaicus Isocrates says that the politeia is the “soul (ψυχή) 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” (ὡς δεύτερον as compared with τὸ πρω̑τον). 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” (μιμήματα) 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 (νόμος) and particular laws (νομιζόμενα), 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,” τὸ κύριον, 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” (κοινὸς νόμος);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 bc 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 Whitelock’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” (λύονται).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 résumé 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
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 réunions 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.
[1. ] Hoveden, for example, usually refers to Henry II’s Constitutions of Clarendon as leges (Chronica Magistri Rogeri de Houedene [Rolls Series], I, pp. 220–22). Walter of Coventry calls them consuetudines quae inductae sunt contra ecclesias terrae suae in tempore suo (The Historical Collection of Walter of Coventry [Rolls Series], I, p. 207).
[2. ] Liebermann, Gesetze der Angelsachsen, I, p. 553.
[3. ] Lib. II, cap. vii (Glanvill De Legibus et Consuetudinibus Angliae, ed. George E. Woodbine [New Haven, 1932], p. 63).
[4. ] Lib. XIII, cap. xxxii, p. 172.
[5. ] Folio 312 B.
[6. ] Folio 168 B.
[7. ] Philippe de Beaumanoir, Coutumes de Beauvaisis, ed. Am. Salmon (Paris, 1899–1900), § 958 (I, p. 486).
[8. ]De Republica Libri Sex et Viginti, Authore D. Petro Gregorio Tholosano, lib. I, cap. i, §§ 16, 19 (Lugduni, 1609, pp. 4, 5).
[9. ] Cicero, De Re Publica, I, p. 45 (69).
[10. ] Ibid., II, p. 21 (37). When, early in the fifteenth century, Jean de Terre Rouge wishes to express the idea conveyed by Cicero’s constitutio or our “constitution,” he uses, not that word, but the phrase status publicus. A century later Seyssell translates this by the term La Police, for which Sleidan in his admirable Latin translation of Seyssell employs politia and not constitutio as its equivalent. So Bodin, in speaking of the constitution of a republic, refers to it as L’estat d’une Republique (Les six livres de la republique, liv. II, chap. 11 [Paris, 1577, p. 200]). In his Latin version, it is status Rei-publicae (Paris, 1586, p. 189). It is true that Bernard de Girard Seigneur du Haillan, in the first edition of his important book, De L’Estat et Succez des Affaires de France, referring in the plural number to the limitations of government implied in Seyssell’s term La Police, applies to them the word constitutions, but it seems clear that he is using the term constitutions to connote not the modern conception of the whole of the complex governmental framework in a state as we do but its older sense, borrowed by the canonists from imperial Rome, by which he means only the several specific enactments of emperors or kings. If so this implies a reluctant acceptance on his part of the theory already asserted by Charles du Moulin and others that the existing limitations of monarchy contained in the customary law of France were originally effected by the enactments of former kings and not by the people more utentium. This is a far-reaching change from the medieval conception of Jean de Terre Rouge and Seyssell and the limitations of the English common law. It marks the longest theoretical step toward the absolutism which ultimately made the France of Louis XIV so different from England with its constitutionalism. Du Haillan’s statement is in part as follows: “. . . qui sont les mesmes mots de Claude de Seissel en son livre de la Monarchie de France, lesquels (bien qu’ils sentent l’antiquité) nous n’avons voulu changer: toutesfois on voit bien que ce bel ordre institué en nostre Monarchie, est corrompu, & que nous ne retenons que l’ombre de ces belles premieres constitutions. Voila donc trois freins & brides, qui guident l’estat du royaume de France, & qui le gardent de se precipiter aux dangers, ausquels les estats, qui sont mal conduits & menez, se precipitent” (De L’Estat et Succez des Affaires de France [Paris, 1571], p. 82).
It is noteworthy here that du Haillan still uses the word constitutions in the plural and in its older medieval sense to include the several fundamental enactments of earlier kings. Thus far I have found no use of the word in its modern meaning, as the whole governmental framework of a state, before the seventeenth century. The first clear instance I have met with is Sir James Whitelocke’s jus publicum regni referred to above at page 14. Even in 1649 the Court in its accusation of Charles I refers to “the fundamental constitutions of this Kingdom,” not to the “Constitution” (Rushworth, Historical Collections, VII, p. 1396), and as late as the Revolution the pamphleteer quoted above at page 8 speaks of “the present Laws and Constitutions of England.” The twelfth century Constitutio Domus Regis (Red Book of the Exchequer [Rolls Series], p. 807; Black Book of the Exchequer, ed. Thomas Hearne [London, 1774], I, p. 341) might be considered an exception, but to me that document as a whole looks more like an administrative order than a “constitution” in our modern sense of the term. The two extracts quoted by Du Cange in which the word is said to be equivalent to consuetudo also seem to me to refer to administrative provisions rather than promulgations of custom (Glossarium Mediae et Infimae Latinitatis, s.v. “constitutio”). They appear to be very like the lex regia of the Leges Henrici Primi (Liebermann, Gesetze der Angelsachsen, I, p. 556), or aliquid de communi consilio. . . constitutum in the Exchequer (Dialogus de Scaccario, I, p. i), or the “novella constitutio,” “hoc est a domino rege nostro,” by virtue of which Thomas Brown, the king’s almoner, sat in the Exchequer in the reign of Henry II, the predecessor of the later king’s remembrancers or Rememoratores Regis (Dialogus de Scaccario, I, V, C). Apparently the word “constitution,” although well-known in this earlier period, has a different meaning and cannot be normally interpreted in the sense of Cicero’s “Constitution” or of our present one. In England the appearance of our modern conception of the “constitution” was delayed by the lawyers’ habit of defining all public relations in terms of private law. As Professor Plucknett says, “When government has ceased to be regarded as private property . . . only then can we begin to speak of political thought and a constitution in the modern non-feudal sense” (The Lancastrian Constitution, Tudor Studies, p. 181).
[11. ]Outlines of Historical Jurisprudence, vol. II, The Jurisprudence of the Greek City, p. 12.
[12. ] Ibid., p. 19.
[13. ] Ibid., pp. 41–42.
[14. ] Ibid., p. 136.
[15. ]The Politics of Aristotle, I, pp. 209–10.
[16. ]Laws, VII, p. 817.
[17. ] § 138. Almost the same words are used in Areopagiticus, §14.
[18. ]Politics, VI (iv), chap. xi.
[19. ] Cicero, De Re Publica, III, p. 22.
[20. ] Werner Jaeger, Aristotle (English translation), p. 290.
[21. ] Ibid., p. 13.
[22. ]Politicus, p. 297. The italics are mine.
[23. ]Politics, III, p. 16.
[24. ] Page 715.
[25. ] Page 659.
[26. ] Hermann Rehm, Geschichte der Staatsrechtswissenschaft, p. 78.
[27. ] Ibid., p. 81.
[28. ] Ibid., pp. 95–96.
[29. ] Λέγω δὲ νόμον τὸν μὲν ἴδιον τὸν δὲ κοινόν. “I refer, on the one hand to municipal law, on the other to the jus gentium” (Rhetoric, I, 13, 2).
[30. ]Politics, VIII, p. 1307.
[31. ]The Politics of Aristotle, tr. J. E. C. Welldon, pp. 348–49.
[32. ] Ibid., p. 368.
[33. ] Ibid., pp. 392–93.
[34. ] Ibid., p. 393.
[35. ] Ibid., p. 394.
[36. ] Ibid., p. 396.