Scribbles in a Storm

Written​ constitutions? ‘Because of where I came from, these documents seemed profoundly exotic.’ In spite of where she came from, which was England, Linda Colley became many years ago the first English intellectual to explain to her nation just how exotic ‘Britishness’ was. Now, with the same pioneering enthusiasm, she has produced a book about constitutions. Not the unwritten playground rules that supposedly guide the Anglo-British state, but those semi-sacred printed sheets of paper for which men and women in the outside world have been known to die.

The book comes at the right moment. Constitutional storms are massing over the old United Kingdom. One, of course, is territorial: the matter of Scottish secession and perhaps Irish reunion. Another approaching hard rain is less obvious but more dangerous. This is the accelerating offensive of the Westminster executive against its restraints: against rival centres of power in Brussels or Edinburgh, against plural interpretations of history, against law itself. Most British governments since Thatcher’s have sought to stamp out what they see as a spreading ‘European heresy’: the notion that supreme law should stand above parliaments, that judges in a democracy may reverse the will of an elected government if it violates a constitution.

This storm has been brewing for a long time. Take a late 20th-century example: during one of those recurring leak panics, somebody in Whitehall revealed to a journalist that a cabinet minister was lying. In the uproar that followed, a civil servant was challenged to confirm that she owed unconditional loyalty to her minister. But she demurred. ‘At the end of the day, I answer to the little lady at the end of the Mall.’ That reply confirmed that the United Kingdom is still essentially a monarchical structure. Not in terms of direct royal intervention, but as a polity in which power flows from the top down. The idiotic doctrine of parliamentary sovereignty – the late 17th-century transfer of absolutism from kings endowed with divine right to an elected assembly – excludes any firmly entrenched distribution of rights. Popular sovereignty in Britain is a metaphor, not an institution.

The civil servant was repeating a beloved and antique myth: that in England – and later in Great Britain – a ghostly higher level of political authority survives, above bishops, landowners and parliaments, to which a subject can appeal. Is a prime minister bound by Magna Carta, for instance? (No way, but it’s indelicate to say so.) Unlike most countries, the UK has no constitution – and so no law of state. Or, to put it another way, nobody knows who is ultimately in charge. During the year of Brexit mud-wrestling in the House of Commons, it was variously claimed that the final say rested with ‘the People’ speaking through a referendum, or with the elected sovereign Parliament, or with the royal prerogative somehow ventriloquised by the executive (i.e. Theresa May and her cabinet). The spectacle was ridiculous. But did it really matter? Great Britain and then the UK had muddled rather successfully through the centuries without a written constitution. People sort of knew what was expected of them, and what was over the top. Why change that?

The answer is: because our governments are growing lawless. A constitution is the ‘supreme law’ in most modern states, a justiciable statute to which political decisions – even democratic ones – are subordinate. Until recently, the notion of supreme law has been alien to England. But now these alien notions have built up into a rooted and ambitious immigration. Since the 1960s, government decisions have been taken to judicial review and reversed if they are held to be unlawful. Over the years, judicial review has gnawed countless moth-holes in the threadbare blanket of parliamentary sovereignty, resulting in the establishment of a Supreme Court and heading very discreetly towards something resembling a joined-up constitution. The counter-attack is fuelled by the growing arrogance and greed for power of the executive, which is now determined to avenge its humiliation by the Supreme Court in 2019 when it threw out Boris Johnson’s illegal attempt to prorogue Parliament. Suella Braverman, the attorney general, spoke for Johnson and many others in this Tory cabinet when she proclaimed that ‘we must take back control’ from the judiciary, that judges were ‘trespassing’ on ‘inherently political terrain’, and that ‘questions which fell hitherto exclusively within the prerogative of elected ministers have yielded to judicial activism.’

That language doesn’t only reveal stupendous ignorance of legal and political norms in the outside world. It shows that the United Kingdom is entering a momentous struggle over civil liberty, more significant even than the battle for parliamentary reform in the 1830s. On one side, a hungry populism slashes at any limitation, criticism or distribution of Westminster authority, a movement related to the pandemic of win-all, take-all populism infecting much of the world. On the other, a resistance is slowly gathering which insists that fundamental law should be above parliaments, that a true citizen swears loyalty to a constitution and not to a cabinet. As Oliver Cromwell told Parliament in 1654, ‘in every government there must be somewhat fundamental, somewhat like a Magna Carta, that should be standing and unalterable.’

The quotation comes from Linda Colley’s latest, largest and most adventurous work. It arrives with perfect timing, for – in spite of its curious title – The Gun, the Ship and the Pen is a book about constitutions. As Colley might put it, it was the din of guns and the cost of ships that impelled pens to scribble down political blueprints for change and reform. This is almost a history of the modern world as told through the development of constitutions: Colley starts with Pasquale Paoli’s design for a free Corsica in 1755, and carries on into the Seven Years’ War, which began in 1756 and whose global spread and fearsome costs (a single 74-gun ship required nearly three thousand mature oak trees and twenty miles of rope, and France built nearly fifty of them in the 1780s alone) changed empires and politics. The pressures set up by the new ‘hybrid warfare’, waged by sea as well as by land, ‘helped to precipitate, enforce and shape new attempts at political and constitutional change and invention’.

Starting the book in the 18th century means that Colley doesn’t spend time on constitutional origins. But even in medieval Europe, contractual agreements of kingship were quite often written down. In the 1320 Declaration of Arbroath, the Scottish nobles warn King Robert that if he should let them down and ‘yield Scotland or us to the English king or people’, they will dethrone him and choose another. ‘We who are as good as you swear to you who are no better than us to accept you as our king,’ the Aragonese allegiance oath declared, ‘provided you observe all our laws and liberties, and if not, not’ (‘y si no, no’). Religion and the notion of ‘supreme law’ came into it later, as Protestant intellectuals fought back against papal authority and the emerging ‘divine right’ theory of monarchy. In Scotland, men and women died rather than admit that an earthly prince could give orders to a Christian church. Obedience was due only to a king or queen who confessed the supreme kingship of Jesus Christ. In 1644, Samuel Rutherford published a defiant book that was burned by the public hangman in St Andrews and Edinburgh. Its title was Lex Rex – ‘The law is king.’ As a fervent Calvinist, he meant the law of God. But the idea that all human authority was subordinate to a fundamental written code – the Bible, in this case – bequeathed special intensity to the countless printed constitutions in the period Colley discusses. It’s a pity she doesn’t examine that religious dimension.

She is anything but uncritical about constitutions. They are ‘emphatically not innocent devices and never have been’, she writes. ‘From the outset … written constitutions have been as much to do with enabling varieties of power as they have been with restricting power.’ Some were written to limit what a monarch could do; some to justify royal or imperial omnipotence. Many were the outcome of revolutions and codified freshly won rights and liberties, like the proud constitutions of newly independent nations. As the 19th century drew on, white colonists composed constitutions to make sure that ‘natives’ and slaves were locked out of citizenship and denied property rights. Colley shows that in the middle and later 19th century, constitutions actually narrowed rather than broadened their promise of rights. Not only property but racial qualifications became fashionable. So too did the exclusion of women from the franchise. This was partly a result of the spreading influence of Freemasonry in Europe and America, with its intense prejudice against female membership. But it happened elsewhere too. In Hawaii women were gradually evicted from political offices they had traditionally held, and in Japan the Meiji modernisers purged women from the bureaucracy. Already in 1810, women were excluded not just from the provisions for active citizenship in the much admired Cadiz constitution in Spain, but even from the debates leading to its formulation.

It’s a shame that the language of so many of these constitutions, progressive or repressive, is a tail-coated Victorian prose. Words that can still clutch the heart (‘In the name of God, and of the dead generations …’) tend to belong to declarations of independence. Colley finds an exception in the opening of the 1787 American constitution. Its original draft began: ‘We the peoples of the states of New Hampshire, Massachusetts, Rhode Island,’ and so tediously on. But one of the youngest delegates to the drafting congress, the 25-year-old Gouverneur Morris, tweaked it so that it now read: ‘We, the People of the United States …’ Colley points out that a united American nation, let alone a single ‘people’, didn’t yet exist. But with those sonorous words read and reprinted across the world, it suddenly did.

Colley​ is a very visual historian. Jeremy Bentham becomes not just an intellectual fountain spraying the world with bold ideas, but a sheltered old fellow who scarcely ventured beyond his London house in Queens Square Place. King Pomare II of Tahiti preferred to write his ‘code’ of governance while lying on his front on the ground, propped up with a cushion. To read Colley’s account of Pitcairn Island in 1838 – a Scottish naval captain had given the islanders the world’s first constitution to grant all men and all women the vote – is to see a handful of defenceless folk and their pigs wandering among the trees, and to hear the immensity of the Pacific breaking on the shore. But it’s not an empty immensity for Colley: ‘As regards constitutional change and innovation, developments across the Pacific in general – including on some of its smaller islands – possess a wide significance.’

Personalities perform in the foreground of a series of historical set-pieces, vividly recounted and analysed. A long section presents the Empress Catherine II, climbing out of bed at four in the morning every day for eighteen months to work at her ‘Nakaz’ – her code for a (despotic) Enlightenment order, patched together with ‘borrowed’ passages from Montesquieu and the French Encyclopedists. ‘The sovereign is absolute, for no other than absolute powers, vested in one person, can be suitable to the extent of so vast an empire.’ Nothing will make me like that evil woman, but Colley’s long and thoughtful retelling of her political development, raking the world for wisdom in the midst of lethal conspiracies and crazy speculation about her sex life, is compelling. Her evocation of Haiti is another brilliant set-piece, as she evaluates the constitutions devised by that phenomenal generation of black leaders after Haitian independence had been won by the slave rebellion of 1791. Jean-Jacques Dessalines asserted human equality and rights, appealing to ‘the Supreme Being’ in the French Jacobin style, but rebuking ‘nature by whom we have been so unjustly … considered as outcast children’. Toussaint Louverture, the best known of them, was followed by Henry Christophe, who declared himself king in a hereditary monarchy. Historians have mocked him for his crowns and gorgeous uniforms. But Colley comes impressively to his defence. In 1811, a monarchy might still attract an international respect denied to republics: ‘For all of the surge in transformative written constitutions … monarchy would remain the default mode of formal state leadership until the First World War, and in some regions even longer.’

Gustaf III, king of a Sweden exhausted by aggressive wars, imposed a constitution, or ‘Form of Government’, in 1772 and declared himself a citizen. As king, he swore allegiance to his own document, and required his male subjects to take separate oaths of allegiance to constitution and to crown. This recognition that fundamental law could be superior to a mere government predated the supreme status the Americans in Philadelphia gave to their own constitution. Thomas Paine, the exciseman from Thetford, egged on the Americans to firm republicanism and supported the calling of a congress to draw up a ‘Continental Charter’. Even before the outbreak of the French Revolution, constitutions were being reprinted, shipped across the globe and imitated on a pick-and-mix basis by an assortment of impatient authors who adapted texts to suit their own situations and fancies. Here, as Colley shows, there was a divergence. Some, like the elderly Jeremy Bentham, saw a constitution as an Enlightenment proclamation of universal rights and values. Others, like his young visitor Eduard Gans from Berlin, took the Hegelian view that constitutions must arise at least in part from the specific past and culture of a nation. ‘Do you actually value history?’ Gans asked. Bentham exploded. ‘This upholder of mindlessness, this page on to which intellect and stupidity are equally written …’

One of the virtues of this book is that it isn’t Eurocentric. The Polish constitution of 1791, which so much excited radicals and intellectuals in France and Britain, gets only a passing mention. Instead, Colley discusses the 1821 Plan de Iguala in Mexico, whose famous Twelfth Article overthrew racial (but not sexual) discrimination: ‘All the inhabitants of New Spain, without any distinction between Europeans, Africans or Indians,’ it held, ‘are citizens of this monarchy.’ And she finds a connection between the plan and the extraordinary Calcutta Journal, edited in those years by the radical English wanderer James Silk Buckingham and his friend Rammohan Roy, a high-caste Bengali intellectual who campaigned to reform Hinduism and attacked the ruling East India Company. Both men believed in the reforming power of written constitutions for India and republished the Plan de Iguala in their paper. It was translated and published all over the world, first in the United States and even, in 1821, by the Connaught Journal, which said that ‘Ireland would not now exhibit a scene of wretchedness and despair’ if that Twelfth Article had been available to Ireland’s excluded Catholic majority. In North America, Sequoyah composed a script for the Cherokee language, and in 1827 joined a group of activists to launch a Cherokee constitution on the grounds that they were an independent nation. But a few years later most of the Cherokee were driven off their lands in Georgia and into the wilderness, four thousand of them dying on the way. As Colley observes, this episode shows the link between access to print and constitution-making, but it also shows that stronger constitutions could kill weaker ones: ‘White Americans progressively used a web of written and printed constitutions to help forge, knit together, legitimise and broadcast to the world a vast transcontinental empire.’

In contrast, although it possessed an ancient print industry, China produced scarcely any constitutional documents before the last decades of the 19th century. Here Colley almost flaunts her mastery of obscure sources: ‘An American merchant based in Macao made precisely this point in 1831.’ If ‘constitution manufactories’ were pumping the stuff out in Spain, Portugal, Hanover or Saxony, the merchant asked, why not in China? Her own explanation is that the Qing empire had not yet been under the intense ‘warlike pressure’ which forces a revaluation of the state and its institutions. That pressure was to arrive in the form of the Opium Wars, the Taiping Rebellion and the Dungan Revolt, the last two of which caused upwards of twenty million deaths, and – decisively – China’s defeats by France and Japan.

Napoleon forced ‘modern’ constitutions on conquered Europe. Some countries, including Poland, embraced his code and administrative patterns, and Napoleonic remnants survive there to this day. Others, such as the German states, turned on him in patriotic outrage as soon as they dared, but kept many of his reforms – the emancipation of the Jews, for instance. In Spain, conquered by French armies, an opposition parliament protected by the Royal Navy managed to gather in Cadiz in 1810; it agreed on a grandiose constitution for Spain and its overseas empire, limiting royal power, abolishing ‘exactions’ on Indigenous peoples and offering the vote to all free adults (except blacks and women). The Cadiz constitution was only ever implemented for very brief intervals; Spain was still under French occupation, while anti-colonial revolutions against Spanish rule were breaking out all over Latin America. The future Duke of Wellington said witheringly that the Cadiz document was done on the principle that a painter paints a picture, ‘viz., to be looked at’.

At this point, Colley turns to Frankenstein, or rather to her own take on whether Mary Shelley modelled the monster or Frankenstein himself on Napoleon. It’s an old speculation, and Colley’s answer is: both. ‘At one level, Napoleon is clearly an inspiration for the monster … an unnatural, increasingly violent creature who nonetheless possesses “powers of eloquence and persuasion”.’ At another level, Napoleon’s career ‘colours Mary Shelley’s descriptions of her central character, the scientist Frankenstein himself … a furiously ambitious individual who believes himself to be above “the herd of common projectors” and “destined for some great enterprise”.’

The major section on Japan, and the Meiji restoration which in a few years transformed Japan from a narcissistic samurai dreamland into a military and industrial world power, is the book’s tour de force. Colley analyses the bond with Prussia, and later with imperial Germany, as eager Meiji emissaries learned not only how to build battleships and siege guns but what sort of constitution could be at once modern and ‘open’ and yet preserve autocratic power. Ito Hirobumi, the dominating moderniser who would become Japan’s first prime minister, learned statecraft in Berlin from the Prussian academic Rudolf von Gneist. Rather surprisingly for an architect of the rule-bound authoritarian state of Prussia, von Gneist felt that a constitution should not be a legal document but should instead ‘embody the spirit and capacities of the nation’. For this reason, he admired the informal, unwritten way the English regulated their polity.

Many foreign reformers agreed. Even Simon Bolívar, the ‘Liberator’ of Spanish America, swallowed Britain’s complacent image of itself hook, line and sinker: ‘How can we use the term monarchy to describe a system that recognises popular sovereignty, the division and balance of powers, civil liberty?’ he wrote. It is ‘the worthiest model for anyone aspiring to the enjoyment of the rights of man and to all the political happiness compatible with our fragile nature’. London, capital of the land with no constitution, attracted throughout the 19th century political exiles from all over the world, many of them trying to discover the secret of Britain’s ‘apparent capacity to combine extreme modernity, the rule of law and relative political stability’. Colley suggests that Britain’s ‘unusual degree of immunity from successful invasions and violent domestic transitions meant that its rulers in London never felt – and still do not feel – an urgent need to concede’ a written constitution. Fair enough. But another reading of history might be that it was the outbreak of war with revolutionary and then Napoleonic France which cut the United Kingdom off from the political currents of European Enlightenment, currents that would eventually have floated even England into some form of republicanism and law-based popular sovereignty. As it was, the threat of invasion, manipulated patriotism and police terror united to sever a connection that has never been restored. Colley believes that the impossibility of a UK constitution diverted the energy of British intellectuals into a substitute: an outpouring of constitutional history, offering precedents later taken up by the leaders of independence movements in the British Empire.

War​ is the real keyword of this book. Again and again, Colley points to its conduct, its geographical extent and its costs as the most reliable stimulus for constitution-making. As the American sociologist Charles Tilly wrote, states make war and war makes states, and the collateral creativity of war has always impressed Colley. At the core of her path-breaking study Britons: Forging the Nation 1707-1837 (1992) was the proposal that ‘Britishness’ as a joint identity hung on three pegs: anti-Catholic prejudice, participation in empire, and war. As she wrote in that book, ‘We can plausibly regard Great Britain as an invented nation superimposed, if only for a while, onto much older alignments and loyalties. It was an invention forged above all by war.’

In this new book, she asserts over and over again that causal connections can be traced between warfare and the spread of written constitutions. Their proliferation, she complains, ‘has often been explained only by reference to the rise of democracy and the lure of certain (mainly Western) notions of constitutionalism. Focusing on the contribution made by recurrent episodes of armed violence provides for a more comprehensive and variegated view.’ As well as the revolutionary outbreaks in Corsica, the Americas, Haiti and elsewhere, attention should be paid ‘to how rising levels of warfare … fed into more imaginative modes of constitutional activity in other sectors of the world’. Colley records the way that, starting in the 1750s, ‘widely distributed iconic texts and single document constitutions aimed at constraining governments, and promising a variety of rights’, multiplied until they became a ‘quantum surge’ after each of the 20th-century world wars. In another passage, she asks: ‘But why did responses to these war-related disturbances and shifts increasingly take the form of new written texts?’ I am not sure that this book, whose central purpose seems to have been to answer that question, quite does so.

It’s not hard to demonstrate that war in this period, swelling monstrously in its global extent, army numbers and killing power, could shake existing states and empires to their foundations. The cost of modern conflict – the enormous human mobilisations, the new battle fleets – emptied treasuries and laid crushing burdens of taxation on populations. The relentless search for recruits brought grief and often violence to every village. Disruption led to discontent, sometimes to revolt. But there’s no simple and direct link between warfare – and the social turmoil it provokes – and constitution-writing. Colley shows, shrewdly enough, how rulers desperate for cannon-fodder devised a connection between soldiering and the new idea of citizenship. Join the army, and you will be entitled to a vote and to the protection of new-fangled constitutional rights, all set down in writing. (This condition effectively kept women out of political life.) In that sense, warfare did sponsor some constitutions. But was it more than a single powerful factor in a bundle of upheavals, class conflicts and royal or plebeian ambitions, any combination of which could move somebody with a pen to design a new order? It would have helped to be given at least one detailed example of the way the pressures of a specific war led to a constitution. Colley cites America’s 1787 constitution, which, she argues, was not intended primarily as ‘a blueprint of a liberal democratic society’ but was a ‘grimly necessary plan for a more effective and defendable union’ in the face of military threats from Britain, Spain and even Russia. Perhaps. On the other hand, Britain in 1815 emerged emaciated and simmering with unrest after three huge wars in a generation, but developed no written constitution. The best that can be said is that people start scribbling most frequently in stormy times, when the existing state of governance no longer carries conviction with subjects, rulers or both.

All the same, Colley’s book proves that constitutions can sprout from all kinds of earth. They can limit a ruler’s power, or sanctify and entrench that power. They can be grants of universal rights, or ‘no trespassing’ notices designed to keep natives, women, immigrants and the poor out of decision-making. Some are manifestos for a political movement. Others are foundational documents for a nation’s fresh-won independence. But the case for imposing a written constitution on ancient Britain, while touching on several of those motives, is more elementary. The ‘unconstitution’ has worked only because England’s ruling elites, out of decent self-interest, have never fully exploited its incredible lack of formal constraint on executive power. That convention is now ending, and the executive is pushing hard at its boundaries. What’s needed is not yet a constitution, but its preliminary, the recognition that governments must be subject to supreme law, ‘Lex Rex’, and that an agreed law of state must be written down. For that, Colley’s book provides the ink. So where is the pen?