This article is taken from the August/September 2021 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.
The conventional view of historians has been that the proliferation of written constitutions in recent centuries around the globe was primarily the result of a tendency towards democracy. Linda Colley offers a starkly different interpretation and rams it home with cogency and panache.
She believes that waves of mainly European hybrid warfare — war pursued by land and sea — were the principal engine behind what she calls “new constitutional technology”. This was not just because wars, like revolutions, brought regimes crashing down, but because warring nation states offered political rights to their citizens (and sometimes to the citizens of those territories they conquered) in exchange for military conscription and increased taxation. And navies cost far more to equip than armies.
While it is true that Enlightenment men “addicted to the written word” were behind most early written constitutions, many of them had also served in the Seven Years War or various wars of independence. Military men got to travel more than the average citizen and at the exchequer’s cost, not their own, so they could pick up ideas and disseminate them across vast distances more readily.
In the late nineteenth century, a written constitution was an effective way of telling the rest of the world how modern your nation was
Often they were in a position to impose a new constitution in practice, not merely on paper. Print technology made such texts easily portable and it is no surprise therefore that freedom of the press should feature in so many of the constitutions written between 1776 and 1850. “Print was deemed indispensable if this new political technology was to function effectively and do its work, both at home and abroad.” Later, the speed of travel by steamship would extend the reach and immediacy of written constitutions yet further.
Colley starts her survey of constitution-makers with Pasquale Paoli, a soldier-legislator who briefly liberated his native Corsica from Genoese rule in 1755. The Haitian revolution saw four written constitutions in quick succession.
The first, in 1801, made Toussaint Louverture general-in-chief for life; the second, in 1805, stipulated that no man was “worthy of being a Haitian who is not … a good soldier”; the third affirmed the “inalienable rights of man” and made Henry Christophe general-in-chief of a northern breakaway statelet with the right to choose his successor; and the fourth, in 1811, made him a hereditary monarch of the whole of Haiti.
Although he committed suicide in 1820 and his sixteen-year-old heir, Prince Victor, was promptly slaughtered, Henry Christophe was “an innovator who recognised that written constitutions might be put to adventurous and profitable use by someone who aspired to be a hereditary monarch”.
Catherine the Great, Empress of Russia, was already in the third year of her reign when she embarked on an eighteen-month process of writing and revising her Nakaz, or Grand Instruction, and while not strictly speaking a written constitution, this twenty-two chapter proposal for legal codification filched clauses from Montesquieu and the Italian jurist Cesare Beccaria as well as borrowing from the French Encyclopédie.
The Nakaz was discussed by a consultative commission in Moscow and heavily promoted abroad, and although it offered Russians no political rights, it did advocate religious toleration, discourage censorship, and enshrine a commitment to the material welfare of all citizens. In much the same way, written constitutions could become instruments of foreign policy, projecting a nation’s values and enhancing its reputation.
By the end of the eighteenth century, “constitution-writing was frequently also a private pursuit, as much a mode of literary and cultural creativity as writing a poem, a play, a newspaper article or, indeed, a novel”. Thomas Paine, a former fighting seaman and excise officer, married Enlightenment ideas to the tradition of civic charters in his Common Sense, recommending that a congress of American colonists should devise a “Continental Charter”.
Of course, Napoleon Bonaparte could dash off a constitution between meals. For example, his constitution for the Duchy of Warsaw, a territory formerly part of Prussian Poland, took him less than an hour to formulate. Its citizens were granted an end of serfdom and equality before the law, in return for which 75,000 of them signed up to become soldiers of France. Whether cynically or not, he also used constitutions to demonstrate the supposed degeneracy of the states he conquered.
London became a hub for dissidents and constitution-mongers, not least the Utilitarian philosopher Jeremy Bentham who drafted away “on a uniquely impressive and promiscuous scale” for all who asked. Britain, the home of Magna Carta, which exported constitutions to colonies in far-flung corners of the globe was nevertheless one of the few countries not to persevere with a written constitution for itself.
Captain Russell Elliott, a British naval officer, wrote a constitution for the 100-strong population of Pitcairn island in 1838, the first constitution anywhere in the world to grant women the vote and enjoin citizens to protect their natural environment. Elliott was a seafaring Scot, who had passed through Chile and was accompanied by a geologist from Poland, both countries that had experimented with written constitutions.
In the late nineteenth century, a written constitution was an effective way of telling the rest of the world how modern your nation was. Constitution makers in Tahiti, Hawaii, Tunisia, West Africa, and Japan sought to show that their models could govern non-Christians and non-whites.
One such was James Africanus Beale Horton, educated in London and Edinburgh, and having served as a surgeon in the British army, who envisaged a West Africa composed of monarchies and republics where universal suffrage pertained.
Since so many constitutions have enjoyed limited longevity and limited effectiveness in restraining abuses of power, why have so many nations persisted in placing faith in them?
Colley’s book focuses on individual constitution makers and emphasises the interconnectedness of their ideas
One reason is their versatility. A constitution may serve the needs of a constitutional monarchy as much as those of a revolutionary republic. It can assist in creating or maintaining an empire or justifying territorial expansion. Most constitutions are exercises in piracy, plagiarism, or reverse-engineering. Some, like Japan’s Meiji constitution of 1889, proved highly adaptable and “could work in other spaces in the world to seduce, disrupt and subvert”.
Colley’s book focuses on individual constitution makers and emphasises the interconnectedness of their ideas. It is copiously illustrated and in some instances she decodes the meaning of these illustrations to reinforce her argument.
Modern warfare does not require such vast supplies of manpower as in the past. Hence the prime mover of constitutional invention has largely departed the stage. This may also explain, Colley suggests, why the long-lived US Constitution of 1787 today languishes in need of further amendment. But written constitutions, for all their flaws, she concludes, are “the best we can hope for”.
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