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ened by attacks upon the personal security, personal liberty, and property of others there is nothing to do but to repel force by force. Of course this repressive force can, in an orderly community, be employed only by the government, except in the few cases of emergency where the right of self-defence is conceded to the individual.
I believe I have succeeded in showing that the same social forces which create and develop the ethics of a nation create and develop its law; that the substantive law is essentially nothing more than the moral rules, commonly and habitually obeyed by the masses, whose enforcement by the courts is required for the public good, while ethics are the rules of morality set forth by our moral teachers, as their highest conceptions of moral development. The morality of the law is commonly and habitually practised by the people; the morality of ethics, if this expression be allowed me, is an idealistic conception, something to be striven for, and more and more approximated, but perhaps never to be fully realized before the days of the millennium.
THE ORIGIN AND DEVELOPMENT OF
The constitution of a state may be described as the definition of the order and structure of the body politic, while constitutional law consists of those fundamental principles and rules in accordance with which the government is constructed and its orderly administration is conducted. Constitutional law may be described as the anatomy and physiology of the body politic.
If these definitions be accepted as true, the conclusion is irresistible that the fundamental principles which form the constitution of a state cannot be created by any governmental or popular edict; they are necessarily found imbedded in the national character and are developed in accordance with the national growth. This doctrine is admitted in its application to the so-called unwritten constitutions, like that of England, whose changes are effected by ordinary parliamentary action, and which cannot be found in any one written instrument, but whose prin
ciples are to be found scattered along the pathway of the nation's history, and serving more or less as landmarks to indicate its political growth. The English Constitution is to be found in the Magna Charta, the Petition of Right, the Habeas Corpus act, and the Bill of Rights. It is plain to the most superficial observer that the English Constitution was not the conscious and voluntary creation of the English people; that it was an evolution from the simple political principles and formulæ of the Teutonic race, finding its beginning in the tribal government of the German barbarians, so graphically described by Tacitus. But when the so-called written constitutions of America and Europe, which are promulgated by the supreme power of the respective countries in the form of a single instrument, and which become operative from the time of their publication, come under consideration, the impulse of all, and the conviction of the many, ascribe to them a very different origin. Even one of the most distinguished statesmen, if not the most distinguished statesman, of modern times, Mr. Gladstone, falls into the grave error of claiming for these two kinds of constitutions a different origin and a different rule of development, when he says that “just as the British Constitution is the most subtle organism which has prof ceeded from progressive history, so the American Constitution is the most wonderful work ever struck
off at a given time by the brain and purpose of man.” It is very true that the attempts to create constitutions off-hand, and to establish them over a people to whom the fundamental principles of the proposed constitutions are an unknown tongue, have been frequent; but it will be impossible to point out a single instance where such a constitution became a permanent and living rule of conduct. Constitutions are effective only so far as their principles have their roots imbedded in the national character, and consequently constitute a faithful reflection of the national will. The Japanese nation has lately adopted a written constitution, after a study of the various constitutional governments of Europe and America; very many principles of the constitutions of the German and English empires, as well as of the American Constitution, have been incorporated into it. But notwithstanding the wonderful adaptiveness of the Japanese character to political and economic innovations, it remains to be seen how much of their new constitution will prove effective, and how much will become inoperative. So far as the principles of their constitution are an outcome of the existing Japanese civilization, and consequently strike a responsive chord in the national heart, will the constitution prove a permanent and living rule of conduct. It is, of course, to be remembered that the Japanese reverence for the authority of the Mikado, and the long
established national habit of unquestioning obedience to the imperial commands, will go far towards stifling popular discontent, or dissipating any want of harmony with the principles and rules of the new constitution, which many will consider and receive as the commands of the august Mikado. But as soon as the people become conscious of their own power, and their reverence for imperial decrees becomes lessened by a more intimate acquaintance with the principles of self-government and democratic rule, the untrammelled political sentiment of the nation will mould the existing constitution into harmonious correspondence, or demand its complete abolition or revision. 1. History furnishes numerous examples of fruitless attempts to impose constitutions upon people whose principles are not in harmony with the popular political sentiment. 2 Locke prepared a written constitution for the Carolinas, whose principles were not in harmony with the popular instinct; Napoleon Bonaparte prepared paper constitutions for the nations whom he conquered, and unhappy France, refusing to believe that “constitutions are not made, they grow," has had one constitution after another, in her effort to secure an orderly and permanent establishment for a republican government. And it is not difficult to comprehend that the failure or success of a form of constitution and government in the experience of one