GOVERNMENTAL PRACTICES

THE seven Pan-Angle nations are similar in their forms of government. This similarity is often obvious, but even where differences of procedure seem to exist the foundations of government are still the same.

In each of the nations the people rule. In each they follow in governing three practices: ultimate control on all questions is in the voters; immediate legislative control is in legislatures composed of representatives who act on behalf of the voters, and subject to restrictions, if any, by the voters only; and executive or administrative control is in charge of elected persons. If "a country where a large portion of the people has some considerable share in the supreme power would be a constitutional country,"[94-1] then these seven nations are more than constitutional countries, for in them the people not only have "some considerable share," but are the final judges on any matters which they desire to adjudicate. As such these nations meet Burke's definition of a free government: "If any man asks me what a free government is, I answer, that, for any practical purpose, it is what the people think {95} so,—and that they, and not I, are the natural, lawful, and competent judges of the matter."[95-1]

Ultimate control in all these nations is secured to the voters by elections and referenda. By these two means the voters choose their representatives and sometimes actively participate in legislation. Often, too, they state the forms under which their representatives shall work and limit the work they shall be allowed to perform. In the British Isles there is no formal limitation on the power of the representatives elected to the House of Commons. In the other six nations the elected representatives are empowered to act only in certain fields. Their power is conveyed to them through written instruments or constitutions which are beyond their control. All power in either case lies ultimately in the voters, whether through the ballot and their ability to defeat at the polls alone, or through this plus a written constitution. Accordingly, as already stated, all seven of our nations have constitutional governments. Outside the British Isles they are, in a sense, doubly constitutional, because not only is this power of election in the voters, but the framework, or written constitution, of each government under which the representatives must act is likewise in the control of the voters.

The word constitution[95-2] is variously used in Pan-Angle {96} parlance, and it may be well here to discuss some of its meanings.

The Constitution of the British Isles consists partly of laws, determining the form of government, which have been passed at various times and are still in force. To this extent it is written. The bulk of the Constitution, however, lies in a mass of tradition, and depends for its force upon the respect in which Parliament holds that tradition. For this reason the British Constitution is frequently called "unwritten." "In one important respect England differs conspicuously from most other countries. Her constitution is to a large extent unwritten, using the word in much the same sense as when we speak of unwritten law. Its rules can be found in no written document, but depend, as so much of English law does, on precedent modified by a constant process of interpretation {97}. Many rules of the constitution have in fact a purely legal history, that is to say, they have been developed by the law courts, as part of the general body of the common law. Others have in a similar way been developed by the practice of parliament. Both Houses, in fact, have exhibited the same spirit of adherence to precedent, coupled with a power of modifying precedent to suit circumstances, which distinguishes the judicial tribunals. In a constitutional crisis the House of Commons appoints a committee to 'search its journals for precedents,' just as the court of king's bench would examine the records of its own decisions. And just as the law, while professing to remain the same, is in process of constant change, so, too, the unwritten constitution is, without any acknowledgment of the fact, constantly taking up new ground."[97-1] "'Constitutional law,' as the expression is used in England, both by the public and by authoritative writers, consists of two elements. The one element, which I have called the 'law of the constitution' is a body of undoubted law; the other element, which I have called the 'conventions of the constitution,' consists of maxims and practices which, though they regulate the ordinary conduct of the Crown and of Ministers and of others under the constitution, are not in strictness laws at all."[97-2] It must be borne in mind that Parliament, and Parliament alone, can change these laws of the Constitution, and that the change can occur whenever a majority of Parliament so decides. {98} What these traditions are changes from year to year and even from day to day—in fact, it is difficult to find two Britishers who will agree on what is the Constitution at a given date, so greatly are these traditions a matter of personal, not national, conviction.

In each of the other Pan-Angle countries the Constitution consists of laws and traditions similar to those in the British Isles, plus a written document (or documents) which is a power of attorney limiting in certain ways the power of the national representatives-be they executive, judicial, or legislative. These written documents are either enactments of the Parliament of the British Isles, or successors to such enactments. The Canadian Constitution was drafted in London by delegates from the Canadian colonies and various British officials,[98-1] and was passed by the British Isles Parliament, March 29, 1867, to take effect July 1. It was never submitted to the people,[98-2] although it was pleaded that the general election which ensued was "virtual ratification." The Australian Constitution, drafted by Australians in a national constitutional convention, ratified by referenda in each colony,[98-3] now to become a "state," was altered by the British Isles Parliament only in reference to the clause which prohibited appeals to the King in Council, and was passed by that Parliament July 9, 1900, to take effect January 1, 1901. The South {99} African Constitution was drafted in South Africa by South Africans in a national constitutional convention, ratified by the legislatures in three of the South African provinces, and in Natal by a referendum of the voters, was altered by the British Isles Parliament only in reference to matters affecting "natives" and "Asiatics," and was passed by that Parliament September 20, 1909, to take effect May 31,1910.[99-1] The Constitutions of New Zealand and Newfoundland are to be found in the charters and enactments framed in London for their government, and are historically similar in composition to the constitutions of the thirteen American colonies. The American Constitution was based on the previous experience of the race, especially as acquired under various colonial charters. It was drafted at a national convention, and was subsequently ratified by state representative conventions successively. The work of the National Convention "was a work of selection, not a work of creation, . . . the success of their work was not a success of invention, always most dangerous in government, but a success of judgment, of selective wisdom, of practical sagacity,—the only sort of success in politics which can ever be made permanent."[99-2] The American people changed governmental responsibility from the British Isles to themselves, but did not and could not change the source of their ideas.

Such written documents are so often referred to as "The Constitution" that citizens of some of the {100} six younger nations often assume that "The Constitution" is the whole Constitution of their respective governments. The first such written power of attorney to the legislators, and as such an expression of the views then held by a certain body politic, was signed aboard the Mayflower in 1620.[100-1] This Constitution by which the forty-one signers "solemnly and mutually . . . covenant and combine ourselves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute and frame-[laws]—unto which we promise all due submission and obedience,"[100-2] did not, however, supersede all other, including unwritten, governmental traditions of that body politic. Constitutions written later have similarly left for their respective groups much continuing tradition, that has been respected and has been enlarged upon. We have written down that which we felt strongly about, but we have also continued other customs. Written "constitutions" have been expressions of public belief as to the form of framework of any given body politic, but for interpretation they have had to rely on unwritten or previously written tradition, as developed to meet arising needs. The mere writing has not arrested our constitutional growth nor rendered inflexible our governmental forms.

The American Constitution consists really of {101} two portions, the written and the unwritten. The tenacity with which the nation clings to certain traditions never put in writing or even at variance with the spirit of the writing, makes it advisable, if not absolutely necessary, so to consider it. Lord Bryce, familiar with the nature of the British Constitution, calls the usages that have grown up apart from the written Constitution "parts of the actual or (so to speak) 'working' Constitution"[101-1] of America. As illustrative of the latter he mentions certain American customs: "The president practically is limited to two continuous terms of office. The presidential electors are expected to vote for the candidate of the party which has chosen them, exercising no free will of their own. The Senate always confirms the nominations to a cabinet office made by the President."[101-2] These instances, of what he calls the American working Constitution, are supported by the same force that maintains the entire British Constitution—public opinion.

To the Britisher, this point of view is thoroughly natural. He has at home a Constitution which is also compounded of written and unwritten parts. To the American this phraseology may sound strange, for he has long been accustomed to think the "Constitution" refers to a particular written document and the judicial decisions thereunder. For the unwritten or working basis of his government he has had no word.